author: MAX N. TOBIAS, JR., Judge.

text:
    GALEN-MED, INC. d/b/a Lakeland Medical Center, Inc. v. Doris Esler PORTER, on her Own Behalf and on Behalf of her Children, Namely Eric Porter, Brandon Porter, Jennifer Porter, Jacilynn Porter, Gina Porter, Jessica Porter, Nicholas Porter, et al. Doris Esler Porter on Behalf of her Minor Children Namely Eric Porter, Brandon Porter, Jennifer Porter, Jacqueline Porter, Gina Porter, Jessica Porter, et al. v. Harold R. York, M.D. and ABC Insuance Company.
    Nos. 2005-CA-0788, 2005-CA-0789.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.
    Rehearing Denied April 28, 2006.

      Harry T. Widmann, Scott T. Winstead, Harry T. Widmann & Associates, Metairie, Counsel for Doris Porter, et al.
    Stephen M. Pizzo, Mary K. Peyton, Blue Williams, L.L.P., Metairie, Counsel for Dr. Harold R. York.
    (Court Composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., and Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

h Doris Esler Porter, on her behalf and on behalf of her minor children, Eric Porter, Brandon Porter, Jennifer Porter, Jaei-lynn Porter, Gina Porter, Jessica Porter, Nicholas Porter (hereinafter collectively referred to as “plaintiffs” or “Mrs. Porter”), appeals from a judgment in favor of defendants, Harold R. York, M.D. (“Dr. York”) and his insurer, dismissing her suit against them with prejudice. After reviewing the record and applicable law, we affirm the judgment.

As reflected in the record, Mrs. Porter became pregnant and first saw her obstetrician/gynecologist, Andrew 0. Montz, M.D. (“Dr.Montz”), on 17 June 1997, at approximately 15 weeks gestation. Her medical history reflected that she had five prior pregnancies that went to term; two that were pre-term; and-one that ended in a spontaneous abortion. She admitted smoking cigarettes, but denied using alcohol or drugs. As part of the routine prenatal workup, Dr. Montz testified that he tested Mrs. Porter for the presence Group B Beta Streptococcus (“GBS”). The test result was positive and Dr. Montz prescribed oral antibiotics to eradicate the bacteria. Dr. Montz did not retest Mrs. Porter for GBS.

Mrs. Porter was admitted to Columbia Lakeland Memorial Hospital (“Lakeland”) on 4 November 1997 at 1:20 p.m. Her membranes had 12spontaneously ruptured and she was in active labor. A short time later, between 2:45 p.m. and 3:00 p.m., Christopher Porter (“Christopher”) was born via vaginal delivery. His gestational age was estimated at between thirty-five and thirty-six weeks, and he was considered to be a pre-term baby. He weighed four pounds, thirteen ounces and his AP-GAR scores were 9 and 10.

Christopher’s pediatrician, Dr. York, was informed that Mrs. Porter had tested positive for GBS during her pregnancy. Therefore, he ordered a latex serum agglutination test to see if Christopher had GBS. The test was negative.

Christopher’s hospital records reflect an uneventful stay. On 5 November 1997, the day after he was born, Dr. Montz circumcised Christopher. Later that same day, approximately twenty-two hours after he was born, he and his mother were discharged from the hospital.

Contrary to the medical records, Mrs. Porter testified that when Christopher was born, she told Dr. York that something was wrong with him. She further testified that Christopher never breast fed. Instead, she stated that he only sucked three times on one occasion and then was bottle fed. By 5 November 1997, she stated that his cry was too low, he did not open his eyes, and he did not want to move. She testified that she again told Dr. York and a nurse that something was wrong with Christopher and that she did not want him released from the hospital. Mrs. Porter stated that in response to her concerns, Dr. York told her that he had already discharged Christopher. Mr. Porter confirmed this conversation.

Dr. York testified that he had examined Christopher twice. The first time was on 4 November shortly after he was born. He examined him again at 7:20 a.m. the next day. He was aware that Mrs. Porter had tested positive for GBS five months before she gave birth to Christopher and that she was treated with ^antibiotics during her pregnancy. He further testified that in 1997, it was the standard of care at several hospitals in the New Orleans area to perform a latex serum agglutination test on an infant to determine if the infant had been exposed to GBS through the presence of antibodies. He thought at the time that the test was extremely sensitive; thus, he felt that a complete blood count (“CBC”) and blood culture were unnecessary.

Dr. York admitted, however, that while it was once thought that the latex serum agglutination test was very sensitive, it is now known that the test had a false negative rate as high as seventy-five percent. In deciding how to proceed, he did not rely solely on the negative latex serum agglutination test. It was also significant that (a) Christopher’s vital signs were normal the entire time he was in the hospital; (b) at the time of delivery, Mrs. Porter did not have a fever; (c) only a small percentage of individuals exposed to GBS ever become infected; and (d) while Christopher was pre-term, his organs and immune system were fully developed. Therefore, Dr. York stated that Christopher had no greater risk of mortality or morbidity than a full-term newborn.

Dr. York also testified that he did not reach the decision to discharge Christopher on 5 November at 7:20 a.m. but agreed to discharge Christopher around noon that day because of the following: (a) the verbal report he received from Christopher’s nurse, which he relied upon because the nurses in the nursery at Lake-land were highly trained neonatal nurses; (b) no problems existed with the circumcision; (c) Mrs. Porter was an experienced mother who had cared for other pre-term infants; and (d) Mrs. Porter had been discharged and wanted to take Christopher home. In addition, he testified that no standard of care existed requiring that a newborn be hospitalized for at least twenty-four hours after birth. |4Pr. York admitted, however, that his discharge notes were dictated at 7:20 a.m. after he examined Christopher that morning and not later when he was actually discharged.

Mrs. Porter testified that on the ride home from the hospital, she took Christopher out of his car seat and held him so she could hear and see him; she had not done this with her other children. Mrs. Porter further testified that after arriving home, .Christopher did not eat and did not have a wet diaper. She claimed to have notified Dr. York’s office, but Dr. York denied receiving such a message.

On the night of 5 November 1997, Mrs. Porter placed Christopher in her bed at approximately 10:30 p.m. He was wearing a yellow shirt. Thereafter, Mr. Porter got in bed. He held Christopher for a while and then placed him in the middle of the bed.

Both Mr. and Mrs. Porter testified that at approximately 4:00 a.m. on 6 November, they awoke when their young son Nickie began knocking on their door and screaming that something was wrong with Christopher. He told her that something yellow was covering his face. Mrs. Porter picked up Christopher and he was not breathing. She handed Christopher to Mr. Porter, who began to perform CPR while Mrs. Porter called 911. The EMS records reflect that Christopher was breathless, pulse-less and nonresponsive. At 4:20 a.m., he was pronounced dead at Chal-mette Medical Center.

The records from Chalmette Medical Center contain two notations regarding feeding. One states “breast feeding” and the other states that Christopher was put |fito bed at 10:30 p.m. after feeding. Despite these notes, Mrs. Porter maintained that Christopher did not eat after leaving Lakeland and that the records from Chal-mette Medical Center are incorrect.

On 6 November 1997, William P. Newman III, M.D. (“Dr.Newman”) a pathologist, performed an autopsy on Christopher. He testified that no gross findings existed to establish the cause of death. However, based upon his microscopic findings, he opined that Christopher died due to respiratory failure secondary to early bronchial pneumonia. Blood cultures may have confirmed whether or not Christopher had an infection and, if so, its identity. However, blood cultures were not done. Dr. Newman further testified that he could not rule out that a heart arrhythmia or suffocation (ie., due to Mr. or Mrs. Porter rolling over him in bed) caused Christopher’s death.

Mrs. Porter, individually and on behalf of her minor children, and Mr. Porter filed a claim against Lakeland, Dr. York, and Dr. Montz with the Division of Administration for a medical review panel.

On 28 March 2001, a medical review panel concluded that the discharge of a small premature infant less than twenty-four hours of age was inconsistent with general pediatric practice. However, it found that all other aspects of care were consistent with the standard of care in November 1997. It found that one could not ascertained from the record whether the early discharge contributed to Christopher’s death. Finally, it found that Dr. York had not breached the standard of care by dictating his discharge notes hours before Christopher’s discharge from the hospital.

In May 2001, Mrs. Porter, individually and on behalf of her minor children, and Mr. Porter filed suit against Dr. York, his insurer, Lakeland, and its insurer. | fiOn 1 June 2004, plaintiffs dismissed Lakeland with prejudice; Dr. York and his insurer remained the only defendants.

At a non-jury trial in September 2004, several witnesses were called to testify. In addition to the parties, Dr. Montz, and Dr. Newman, the other witnesses were Howard Bruce Harris, M.D. (“Dr. Harris”), Nicholas A. Danna III, M.D. (“Dr. Danna”), Randall Douglas Craver, M.D. (“Dr. Craver”), Richard Paul LeBeouf, M.D. (“Dr. LeBeouf’), Victor Lunyong, M.D. (“Dr. Lunyong”) and Marcello Gioe, R.N. (“Ms. Gioe”).

Dr. Harris was qualified as an expert in pediatrics and neonatology and testified on behalf of the plaintiffs. Dr. Harris opined that Christopher’s death was due to sepsis caused by GBS. He based his conclusion on the following: (a) Mrs. Porter had tested positive for GBS during her pregnancy; (b) a repeat culture had not been done and, therefore, it is unknown what colonization was present at the time she delivered Christopher; (c) GBS was the most common infection in babies in 1997; (d) Christopher died when he was approximately thirty-six hours old; (e) the placenta showed evidence of inflammation, which could indicate that Christopher was responding to an infection; and (f) the pathologist, Dr. Newman, reported that Christopher had acute bronchopneumonia. Dr. Harris stated that thirty-five to fifty-five percent of babies with GBS develop pneumonia.

Having concluded that Christopher’s death was due to sepsis caused by GBS, Dr. Harris testified that Dr. York breached the standard of care by not observing Christopher in the hospital for forty-eight hours after birth and by not ordering a CBC and blood culture. In support for his opinion, Dr. Harris cited an algorithm published by the American Academy of Pediatrics in 1996, discussing intrapartum antimicrobial prophylaxis for the prevention of early on-set GBS disease. |7However, as noted by Dr. York, a notation on the algorithm states that the suggestion to order a CBC and blood culture is not an exclusive approach of management.

Dr. Harris testified that had a blood culture been performed, he believed to a “reasonable degree of medical certainty” that it would have been positive. He gave two reasons for this opinion: (a) blood cultures have a low false negative rate of only five to twenty percent; and (b) Christopher was responding to an infection, as evidenced by the autopsy. He was not, however, able to state to a “reasonable degree of medical certainty” that a CBC would have been positive.

Dr. Harris also opined that it was a breach in the standard of care for Dr. York to complete his discharge report hours before actually discharging Christopher. He stated that the report should have been completed contemporaneously with discharge. Because the report was apparently completed hours before discharge, Dr. York would not have known Christopher’s actual medical condition at the time he was sent home.

Under cross-examination, Dr. Harris first conceded that it was never confirmed that Christopher had GBS. Second, he admitted that although eighty to 1 seighty-five percent of the individuals with GBS exhibit symptoms within the first twelve hours of birth, nothing specific in Christopher’s hospital records support a conclusion that he had an infection. Finally, he admitted that only one to two percent of the individuals exposed to GBS actually become infected.

Dr. Danna testified on behalf of the defense and was qualified as an expert in pediatrics. He was also a member of the medical review panel. Dr. Danna testified that since rendering his opinion, he no longer believed that Dr. York breached the standard of care by discharging Christopher less than twenty-four hours after birth. -While admitting he had not received any new information since rendering his opinion, he stated upon further thought, he changed his opinion because he knew of no medical rule requiring a newborn to remain in the hospital for twenty-four hours before being discharged. As to the remainder of his opinion, Dr. Danna still maintained that even if Christopher’s discharge was premature, it did not contribute to his death. Further, Dr. Danna testified that he did not believe that Christopher had GBS. He based this conclusion on the following: (a) rarely do mothers with GBS pass the disease on to their children; (b) if the child had GBS, he would have been born sick; and .(c) symptoms of the infection would have appeared before the child was discharged. However, in the present case, the hospital records reflect no sign of respiratory difficulties or infection. In fact, the chart notations were inconsistent with exposure to GBS. Specifically, he noted that the chart reflected that Christopher fed well and slept.

Dr. Danna further testified that Dr. York did not breach the standard of care by failing to order a CBC or blood culture since the tests can be misleading. Finally, he stated that he did not believe Christopher’s slight prematurity put him at an increased risk for infection.

liiDr. Craver was called to testify for the defense and was qualified as an expert in anatomical and pediatric pathology. He could not determine what caused Christopher’s death. Dr. Craver stated that he could not rule in or out suffocation or cardiac arrhythmia as a cause of death. While Christopher had bacterial bronchial pneumonia, he opined that not enough pneumonia was present to have caused his death; instead the pneumonia was a contributing factor to his death. Dr. Craver admitted that while GBS is known to cause bronchial pneumonia and septicemia, he saw nothing specific in the medical records to indicate the presence of GBS.

Additionally, Dr. Craver opined that had blood cultures been done, they may not have been positive. He concluded that although Christopher was slightly premature, he was fully developed, and no extenuating circumstances existed to make him less able to handle an infection.

Dr. LeBeouf also testified for the defense. He was qualified as an expert in pediatrics and was also a member of the medical review panel. Dr. LeBeouf testified that in 1997, no standard of care existed requiring that pre-term infants with risk factors for GBS be monitored for forty-eight hours after birth. Furthermore, he testified that since rendering his opinion as a panel member, he, like Dr. Danna, had changed his mind. Specifically, he no longer believed that it was a breach of the standard of care to discharge Christopher less than twenty-four hours after his birth.

In explaining his position, Dr. LeBeouf testified that even when he signed the panel opinion, he did not strongly feel that Dr. York had deviated from the standard of care. Upon further thought, he stated that he no longer believed the standard of care was breached.

hnDr. LeBeouf based his current opinion on the fact that Christopher remained in the hospital for twenty-two hours after birth, only two less than twenty-four, was only slightly premature, and had a slight deviation in weight. He noted that Christopher’s birth weight was recorded as four pounds, thirteen ounces. It was possible that Christopher’s birth weight was five pounds, but he may have voided prior to being weighed.

In keeping with the panel opinion, Dr. LeBeouf testified that that Christopher’s discharge twenty-two hours after his birth had no effect on the outcome. He admitted that GBS is one of the most frequent infections in newborns, but that several organisms could have caused an infection. He conceded that the latex serum agglutination test for GBS had both high false positive and negative rates and that a blood culture would have been a more definitive, quicker tests. However, in the present case, based upon Christopher’s appearance and the examination results, Dr. LeBeouf was not sure that he would have ordered any tests at all.

Finally, Dr. LeBeouf had no problem with Dr. York completing the discharge findings hours before Christopher was actually discharged. He stated that in his own practice, he would complete the chart prior to the actual discharge by a few hours and, if needed, make an addendum to the notes.

The final physician to testify for the defendant was Dr. Lunyong, who was qualified as an expert in neonatology. Dr. Lunyong admitted that technically, Christopher was a pre-term baby that put him at a slightly greater risk of developing infection than a full term baby. Dr. Lu-nyong also admitted that Mrs. Porter’s placenta showed early signs of inflammation, which could have indicated an infection of some sort, although not necessarily an infection causing GBS. Dr. In Lunyong admitted that no other likely explanation existed for a child developing bronchial pneumonia less than forty-eight hours after his birth except the possibility of an infection passed to him by his mother.

Nevertheless, Dr. Lunyong testified that Dr. York did not breach the standard of care. He stated that when a pregnant woman tests positive for GBS months before she delivers, the physician’s decision to treat the infant depends on the presence of risk factors. In the present case, no risk factors existed to warrant treatment, blood cultures, or a CBC: (a) Mrs. Porter showed no signs of infection; (b) her labor was short (ie. less than six hours) which meant a limited exposure time; and (c) Christopher showed no signs of infection. Dr. Lunyong opined that considering the lack of risk factors, had a blood culture been done, it was very unlikely it would have been positive.

Dr. Lunyong also testified that Dr. York did not breach the standard of care by completing the discharge summary hours before Christopher was actually discharged. Although not in the medical records, Dr. York found Christopher to be well and, because the staff found no problems, Christopher’s circumcision went forward.

Finally, Dr. Lunyong testified- that it was not a breach of the standard of care to allow Christopher to be discharged when he was less than twenty-four hours old. He noted that in 1997, no national protocol existed dictating the amount of time a newborn should spend in the hospital. In addition, no reason existed why Christopher should have remained in the hospital. Specifically, Dr. York had examined Christopher twice in the hospital and he had no signs of an infection. While he was less than twenty-four hours old, he had passed the highest risk period for symptoms of an infection to surface. In fact, Dr. Lunyong testified that with 1 iaGBS, the majority of newborns acquire symptoms within the first twelve hours after birth.

Finally, Ms. Gioe, one of Christopher’s nurses at Lakeland, was called by the defense. She began taking care of Christopher at 7:00 a.m. on 5 November 1997, the day after he was born. She testified that Christopher’s vital signs were normal and that no abnormalities were noted. Furthermore, she stated that Mrs. Porter had reported that Christopher was feeding well. She noted that the circumcision was without complications. Finally, she testified that Christopher was fine when he left her care and was discharged from the hospital with his mother at approximately 13:45 hours.

The trial court rendered judgment on 28 October 2005, finding in favor of the defendant. In lengthy written reasons for judgment, the court found that the plaintiffs failed to establish by a preponderance of the evidence that Dr. York had breached the standard of care in his treatment of Christopher. The court did not find Dr. Harris’s opinion that the standard of care was breached persuasive. Specifically, the court found that it was not clear what had caused the infant’s death and insufficient proof existed to conclude that Christopher had GBS. The trial court rejected Dr. Harris’ opinion that had blood cultures been done, they would have been positive.

The trial court also found that it was not a breach of the standard of care to discharge Christopher when he was less than twenty-four hours old, relying on the testimony of Drs. Danna, LeBeouf, and York. Finally, the trial court found that Dr. York did not breach the standard of care by not completing the discharge report contemporaneously with the discharge. The court found credible Dr. York’s |1stestimony that he made the decision to discharge Christopher at noon after receiving a report from the nursery nurse.

The plaintiffs have assigned three issues for review:

1. Whether the trial court erroneously relied upon the thoroughly contradictory and inconsistent testimony and opinions of defense experts, especially considering that the two of those experts reached opposite conclusions as members of the medical review panel.
2. Whether the trial court erred as a matter of law by disregarding the uncontroverted expert testimony that when a pediatrician, like Dr. York, suspects a GBS infection, the standard of care calls for a blood culture.
3.Whether, as a matter of law, the trial court applied the wrong legal standard regarding both the standard of care for a pediatrician and causation of Christopher’s death.

In Madison v. Ernest N. Morial Convention Center-New Orleans, 00-1929, pp. 18-19 (La.App. 4 Cir. 12/4/02), 834 So.2d 578, 590, this court set forth the burden of proof and standard of appellate review in a medical malpractice action against a physician as follows:

In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that.the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the, alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276-1277 [ (La.2005) ]. Resolution of each of these inquires are determinations of fact which should not be reversed on appeal absent manifest error. Id; Descant v. Administrators of Tulane Educational Fund, 95-2127, p[p]. 8-9 (La.App. 4 Cir. 1/21/98), 706 So.2d 618, 628. If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Martin, supra. Where there are two permissible |uviews of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The determination of an expert’s credibility is also a factual question subject to the manifestly erroneous/clearly wrong standard of review. Id; Martin, supra. The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682. The evaluation of and resolution of conflicts in expert testimony are factual issues to be resolved by the trier of fact, and the determinations of the fact finder should not be disturbed on appeal in the absence of manifest error. Id.

The trial court heard testimony from four medical experts who gave their respective opinions regarding the applicable standard of care on the issues presented herein. Only Dr. Harris opined that Dr. York had breached the standard of care by failing to do a CBC and blood culture on Christopher soon after his birth. The court found his testimony unpersuasive and instead relied on the opinion of the other medical experts who disagreed with him. We do not find that this conclusion was manifestly erroneous or clearly wrong given the testimony in the record.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

      . Mr. Porter admitted that Christopher was not his biological child and that he and Mrs. Porter were divorced. However, he was staying in the home because his children were living there and he slept in Mrs. Porter’s bed because no other place existed in the house for him to sleep.

      . As we stated in Daspit v. Barber, 00-1221, p. 5 (La.App. 4 Cir. 4/11/01), 786 So.2d 962, 967:
      Requiring that plaintiffs prove their injuries to a "reasonable medical certainty” holds plaintiffs to an artificially high standard, according to the Louisiana Supreme Court in Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). The "reasonable medical certainty” standard requires plaintiffs to prove their case beyond a reasonable doubt, and also tends to preclude the trier of the facts from relying on evidence other than that of medical experts. Id. The proper standard is preponderance of the evidence.
      In the instant case, we find that the trial court's use of the term "reasonable degree of medical certainty,” when discussing Dr. Harris' testimony does not mean that the court applied the wrong standard. In fact, we note that when setting forth the standard in the reasons for judgment, the trial court wrote that the plaintiffs "must establish by a preponderance of the evidence” that Dr. York’s treatment fell below the ordinary standard of care. Consequently, we find no error in that regard.

      . See footnote 2, supra.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge. MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Troy GORDON.
    No. 06-KA-8.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2006.
    Opinion Granting Rehearing May 15, 2006.

      Harry J. Morel, Jr., District Attorney, Howat A. Peters, Jr., Assistant District Attorney, Twenty-Ninth Judicial District, Parish of St. Charles, State of Louisiana, Hahnville, Louisiana, for Plaintiff/Appel-lee.
    Holli Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

i2Pefendant, Troy Gordon, appeals his conviction for distribution of cocaine. For the following reasons, we dismiss defendant’s appeal as untimely.

On July 21, 1999, the St. Charles Parish District Attorney filed a bill of information charging defendant, Troy Gordon, with distribution of cocaine. Gordon was arraigned on August 10, 1999 and pled not guilty. The State amended the bill of information on June 26, 2000 to change the year when the offense was alleged to have been committed from 1998 to 1999.

Gordon was tried by a twelve-person jury on June 26, 2000. The jury returned a unanimous verdict of guilty as charged.

On August 23, 2000, the State filed a habitual offender bill of information, alleging Gordon to be a third felony offender. On that day, Gordon was apprised of the State’s allegations and entered a denial. The trial court held a habitual | .^offender hearing on September 20, 2000, and found Gordon to be a third felony offender.

On October 25, 2000, the trial court found that the mandatory life sentence to which Gordon was exposed as a third felony offender was excessive and imposed a habitual offender sentence of twenty-eight years at hard labor. The judge further ordered that the sentence be served concurrently with the five-year sentence imposed in case number 98-0685.

Gordon did not file a timely written motion for appeal in accordance with LSA-C.Cr.P. art. 914, so we must first consider whether defendant preserved his appeal rights by other means.

On December 13, 2000, Gordon filed a motion for out-of-time appeal in proper person. The trial court denied that motion, noting that the proper procedural vehicle for seeking reinstatement of appeal rights is an application for post-conviction relief. On October 31, 2002, Gordon filed an untimely application for post-conviction relief in the district court, seeking reinstatement of his appeal rights. On August 2, 2005, the trial court issued an order granting Gordon an out-of-time appeal. The court denied Gordon’s remaining post-conviction claims of insufficiency of the evidence and excessive sentence.

LSA-C.Cr.P. art. 930.8 A provides that, unless one of the exceptions enumerated in the article is applicable, “[n]o application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final.... ” Sub-part A(l) of the article creates an exception where “[t]he applicant alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney.” | ¿Defendant’s post-conviction application was clearly untimely under Article 930.8. Moreover, the exception in subpart A(l) does not apply to defendant’s application, because he failed to allege that his untimeliness was due to recently discovered facts. Accordingly, we dismiss defendant’s appeal as untimely.

APPEAL DISMISSED.

LON REHEARING

MARION F. EDWARDS, Judge.

We granted rehearing for the purpose of again reviewing whether defendant, Troy Gordon, timely filed the present out-of-time appeal. After careful reconsideration of the entire record, we reinstate Gordon’s appeal rights, consider the merits of his appeal, affirm his conviction, and remand to correct errors patent on the face of the record.

On July 21, 1999, the St. Charles Parish District Attorney filed a bill of information charging defendant, Troy Gordon, with distribution of cocaine. Gordon was arraigned on August 10, 1999, and pled not guilty. The State amended the bill of information on June 26, 2000, to change the year when the offense was alleged to have been committed from 1998 to 1999.

Gordon was tried by a twelve-person jury on June 26, 2000. The jury returned a unanimous verdict of guilty as charged.

On August 23, 2000, the State filed a habitual offender bill of information, alleging Gordon to be a third felony offender. On that day, Gordon was apprised of the State’s allegations, and entered a denial. The trial court held a habitual offender hearing on September 20, 2000, and found defendant to be a third felony offender.

On October 25, 2000, the trial court found that the mandatory life sentence to which Gordon was exposed as a third felony offender was excessive, and imposed a habitual offender sentence of twenty-eight years at |shard labor. The judge further ordered that the sentence be served concurrently with the five-year sentence imposed in case number 98-0685.

On August 2, 2005, the trial court issued an order granting Gordon an out-of-time appeal. The court denied defendant’s remaining post-conviction claims of insufficiency of the evidence and excessive sentence. In our original opinion in this matter, we denied Gordon’s out of time appeal as untimely.

Agent Samantha Wilson testified that she is a deputy with the St. John the Baptist Parish Sheriffs Office. On June 9, 1999, she worked with the St. Charles Parish Sheriffs Office conducting undercover drug buys in St. Charles Parish. She drove an unmarked car, and was accompanied by a confidential informant. She testified that the informant did not participate in any of the drug transactions.

At about 6:00 p.m., Wilson saw defendant, Troy Gordon, on Boutte Estates Drive. He was driving a white Ford Taurus. Wilson stopped her car and asked him if he had a “twenty.” Gordon told her that he had to get something, and that she should meet him at the other end of Boutte Estates Drive. Wilson drove to the place Gordon indicated, and parked her vehicle behind his.

Wilson testified that Gordon exited his car and approached the driver’s side window of her car. He gave her a piece of a rock-like substance, and she gave him twenty dollars in cash. Gordon also gave Wilson a business card on which was printed “Bass Head Records” and a telephone number. Gordon told her she could reach him at that number if she wanted to buy anything else.

1 ¿Wilson testified that when the transaction was completed, she placed the rock in a small plastic evidence bag and marked it “number two,” to indicate that it was from the second purchase she made that day. She later gave the evidence to Detective Allen Bryant of the St. Charles Parish Sheriffs Office. Wilson identified State’s Exhibit 1 as the rock she purchased from Gordon.

Wilson said that the entire transaction was recorded by a camera hidden in her car. She identified State’s Exhibit 5 as the videotape of the transaction. The prosecutor played it for the jury.

Detective Bryant testified that he acted as a back-up for Wilson on June 9, 1999. He listened to Wilson’s transactions over a radio monitor from a remote location. Bryant testified that Wilson completed four drug transactions that day, and that at the end of the day she gave him the drugs she had purchased in four separate marked bags. He identified State’s Exhibit 1 as the evidence he received from Wilson in relation to the second purchase. Bryant testified that he weighed the evidence and field tested it at his office. The result was positive for cocaine. Bryant placed the cocaine in the narcotics safe at the sheriffs office. It was later delivered to Deputy William Slayton, the evidence custodian.

Deputy Slayton identified State’s Exhibit 1 as the off-white rock-like' substance he maintained as evidence custodian. He testified that he received the evidence from Bryant on June 15,1999. Slayton identified State’s Exhibit 4 as a certified copy of a lab report from the Jefferson Parish Crime Lab. The report shows that the off-white rock-like substance tested positive for cocaine.

In his first assignment, Gordon complains the State failed to provide sufficient evidence to support his conviction for distribution of cocaine, Rarguing it did not prove that a drug transaction took place. Specifically, Gordon contends that the videotape introduced by the State does not corroborate Agent Wilson’s eyewitness testimony. He argues that the videotape of the transaction is circumstantial evidence in that it does not show a hand-to-hand exchange between himself and the undercover officer, and that the tape leaves room for a reasonable hypothesis of innocence.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential 'elements of the crime beyond a reasonable doubt. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Ultimately, all evidence, both direct and circumstantial, must be sufficient under the Jackson standard to prove guilt beyond a reasonable doubt.

With regard to appellate review of circumstantial evidence, the Louisiana Supreme Court has recently commented:

... [T]he pertinent question on review was not whether the appellate court found that defendant’s hypothesis of innocence offered a reasonable explanation for the evidence at trial but whether jurors acted reasonably in rejecting it as a basis for acquittal. In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all the elements of the crime have been proven beyond a reasonable doubt. This standard, now legislatively embodied in La.C.Cr.P. Part. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for- that of the fact-finder. A reviewing court:may intervene in the trier of fact’s decision only to the extent necessary to guarantee due process of law. Accordingly, in cases relying on circumstantial evidence to prove one. more elements of the crime, when the fact-finder reasonably rejects the hypothesis of innocence advanced by the defendant at trial, that hypothesis fails, and the verdict stands unless the evidence suggests an alternative hypothesis sufficiently reasonable that rational jurors could not find proof of the defendant’s guilt beyond a reasonable doubt. (Citations omitted).

LSA-R.S. 40:967 A(l) provides that it is unlawful for any person to knowingly and intentionally distribute a controlled dangerous substance classified in Schedule II. Cocaine is classified as a controlled dangerous substance under LSA-R.S. 40:964 A(4). The term “distribute,” as it is used in the Uniform Controlled Dangerous Substances Law, means “to deliver a controlled dangerous substance whether by physical delivery, administering, subterfuge, furnishing a prescription, or by filling, packaging, labeling or compounding the substance pursuant to a lawful order of a practitioner.” The term “deliver” means “the transfer of a controlled dangerous substance whether or not there exists an agency relationship.” Delivery has also been jurisprudentially defined as transferring possession or control.

Gordon contends, as he did below, that the videotape does not corroborate Wilson’s testimony that defendant handed her a rock of crack in exchange-for twenty dollars. Gordon argues that, because the tape does not show his or the officer’s hands, it allowed for a reasonable hypothesis of innocence — for instance, that he was simply flirting with Wilson.

|7Pefendant’s claim lacks merit. As the State points out, Wilson’s testimony was, by itself, sufficient to prove the essential elements of the offense. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient to support a conviction.

Wilson testified that she asked Gordon if he had a “twenty.” Gordon told her to meet him in a specific place. Wilson testified that when she met defendant there, he gave her a rock of crack, and she gave him twenty dollars in payment. She stated that Gordon gave her a business card with a telephone number on it, and told her to call him if she needed anything else. While it is true that defendant’s and Wilson’s hands are not visible during most of the encounter depicted on the videotape, the tape does not contradict Wilson’s testimony. It depicts Gordon approaching Wilson’s car and leaning into the driver’s side window for a few moments. When he steps back, he appears to have something in his hand. Although Gordon appears to speak to Wilson during the encounter, there is no audio recorded on the tape.

A reviewing court does not assess the credibility of witnesses or reweigh the evidence. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. The trier of fact is presumed to have acted rationally. In the instant case, the jury apparently found Wilson’s testimony credible. There is nothing in the record to negate the presumption that the trier of fact has acted rationally.

| sBased upon our review of the record, we find that the evidence was sufficient under the Jackson criteria to support defendant’s conviction. Accordingly, we affirm the defendant’s conviction on this basis.

Gordon further requests an errors patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland regardless of whether defendant makes such a request. The review reveals one error patent in this ease that requires corrective action.

The trial court failed to notify defendant of the two-year prescriptive period for filing an application for post-conviction relief,

as is required by LSA-C.Cr.P. art. 930.8. We therefore remand the case with an order to the trial court to provide defendant with written notice of the prescriptive period, and to file written proof in the record that defendant received such notice.

Accordingly, for the foregoing reasons, we grant rehearing, reinstate appellant’s appeal rights, affirm defendant’s conviction and remand to correct errors patent on the face of the record.

REHEARING GRANTED; AFFIRMED; REMANDED.

      . Defendant's name is spelled "Gorden” in some places in the record.

      . LSA-C.Cr.P. arts. 924-930.8; State v. Counterman, 475 So.2d 336, 339 (La.1985).

      . See, State v. Mickel, 03-795, p. 3 (La.App. 5 Cir. 12/9/03), 864 So.2d 661, 663, writ denied, 04-2515 (La.6/17/05), 904 So.2d 692.

      . Defendant's name is spelled "Gordon” in some places in the record.

      . Wilson explained that a "twenty" is street slang for twenty dollar’s worth of crack cocaine.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Juluke, 98-0341 (La. 1/8/99), 725 So.2d 1291 (per curiam).

      . State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

      . Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

      . State v. Pigford, 05-0477, pp. 5-6 (La.2/22/06), 922 So.2d 517, 520-21 (per curiam).

      . LSA-R.S. 40:961(14).

      . LSA-R.S. 40:961(10).

      . State v. Celestine, 95-1393, p. 3 (La. 1/26/96), 671 So.2d 896, 897; State v. Pierre, 03-1306, p. 6 (La.App. 5 Cir. 2/23/04), 869 So.2d 206, 211, writ denied, 04-0959 (La. 10/1/04), 883 So.2d 1006.

      . State v. Lai, 04-1053, p. 7 (La.App. 5 Cir. 4/26/05), 902 So.2d 550, 556, writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175.

      . Detective Bryant testified that they did not record audio in order to protect the identity of the confidential informant.

      . State v. Young, 04-1318, p. 5 (La.App. 5 Cir. 4/26/05), 902 So.2d 461, 465.

      . Id.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Mutz, 04-1072, p. 9 (La.App. 5 Cir. 2/15/05), 896 So.2d 1129, 1135.


author: STEWART, J.

text:
    Tom WILCOX, Individually and on Behalf of the Estate of Gaye W. Wilcox, Plaintiffs-Appellants, v. GAMBLE GUEST CARE CORPORATION, South Park Guest Care Center, and Ron Durel, Defendants-Appellees.
    No. 40,650-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.
    Rehearing Denied May 11, 2006.

      Georgia P. Kosmitis, Shreveport, Cook, Yancey, King & Golloway, by Bernard S. Johnson, Shreveport, for Appellants.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, by Lawrence W. Pettiette, Jr., Joseph S. Woodley, Shreveport, for Appellees.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   STEWART, J.

|]Tom Wilcox, individually and on behalf of the estate of Gaye Wilcox, appeals the trial court’s grant of the defendant’s, Louisiana Patient Compensation Fund’s (“PCF”), exception of no cause of action in response to plaintiffs request for damages under the Nursing Home Residents Bill of Rights (NHRBR). Plaintiffs also appeal the trial court damage awards for their survival and wrongful death actions against South Park Guest Care Center (“South Park”). Finding no merit in plaintiffs claims, we affirm the trial court.

FACTS

On July 25, 2000, Mrs. Gaye Wilcox was admitted to South Park with a diagnosis of schizophrenia. She was in need of twenty-four hour professional nursing care which forced her to move out of the home of her son, Tom Wilcox. South Park agreed to provide the care needed by Mrs. Wilcox for $2,200.00 a month.

As soon as Mrs. Wilcox was admitted, South Park began the use of restraints, strapping her to a bed without a physician’s orders, but rather for the convenience of the staff. Later, Mrs. Wilcox’s treating physician, Dr. Teagle, issued an order permitting the restraints, but it contained the proviso that they must be checked every thirty minutes and released for ten minutes every two hours. The evidence showed that the defendant nursing home staff simply ignored these requirements, continuing to strap Mrs. Wilcox into the bed for their convenience rather than using the restraints in the manner prescribed by her physician for her care and benefit.

|2On numerous occasions during her stay in the nursing home, Mrs. Wilcox suffered personal injuries during her stay in the nursing home. On December 19, 2001, Mrs. Wilcox died of asphyxiation, hanging upside down from the roll belts on the side of her bed.

South Park was sued as a qualified health care provider under the Medical Malpractice Act. A settlement was reached with South Park for $90,000.00, and plaintiffs proceeded against the PCF for the damages for breach of contract, wrongful death and survival damages.

Following a bench trial, the court ruled that the negligence of South Park caused the death of Mrs. Wilcox. The trial court further found that the PCF was liable for the negligence and medical malpractice of South Park. As a result, the court awarded $45,000.00 for the survival action. The trial court further awarded Cliff Wilcox $25,000.00 and Tom Wilcox $75,000.00 for wrongful death. Finally, the court ruled that plaintiffs’ have no cause of action against PCF for violations of the NHRBR by South Park and denied plaintiffs claim for attorney fees. This appeal ensued.

DISCUSSION

Exception of No Cause of Action

In deciding whether a petition states a cause of action, the court must accept well-pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Edwards v. Edwards, 35,953, 35,954 (La.App.2d Cir.05/08/02), 817 So.2d 414; Arledge v. Hendricks, 30,-588 (La.App.2d Cir.06/26/98), 715 So.2d 135, writ denied, 98-2015 (La.11/20/98), 728 So.2d 1287.

Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681; Jones v. Bethard, 39,575 (La.App.2d Cir.04/13/05), 900 So.2d 1081. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885; Jones, supra; Tri-State Sand & Gravel, L.L.C. v. Cox, 38,217 (La.App.2d Cir.04/07/04), 871 So.2d 1253, writ denied, 04-1357 (La.09/24/04), 882 So.2d 1144.

The trial court correctly granted the exception of no cause of action filed by PCF and dismissed plaintiffs claims based on the NHRBR. The PCF can only be liable for compensation arising under the Medical Malpractice Act (“MMA”). This court has recognized that a violation of the NHRBR constitutes a separate tort apart from a claim under the MMA. Gibbs v. Magnolia Living Center, Inc., 38,184 (La.App.2d Cir.4/7/04), 870 So.2d 1111. Claims under the NHRBR are not cognizable against PCF.

It is clear that only La. R.S. 40:2010.8(A) creates the right which, if violated, would be considered malpractice and is clearly the one exception held by the Supreme Court to constitute malpractice. Section (7) states in its entirety:

The right to receive adequate and appropriate health care and protective and supportive services consistent with the resident care 14plan with recognized practice standards within the community and rules promulgated by the Department of Health and Hospitals.

Plaintiff settled his claims against the underlying defendants and dismissed all additional claims against the underlying provider, including NHRBR claims. Because these claims were compromised and dismissed, they cannot be maintained against the PCF.

Further claims for attorney fees pursuant to the NHRBR are punitive and cannot be awarded against PCF for violations under the MMA. It would be inappropriate for a qualified health care provider, such as the underlying nursing home in this case, to pay its surcharge to the PCF only to then be stripped of the act’s protections by having malpractice claims brought outside of the MMA under the NHRBR. Malpractice claims under section 7 of the NHRBR are not meant to repeal or supplant the MMA. A ruling by this Court that a litigant is not entitled to recover the penalties set forth in the NHRBR would not divest nursing home residents of any rights already available. Settlement of the medical malpractice claim would not foreclose maintaining a claim for other violations of the NHRBR against the offending nursing home. In this case, plaintiff could have chosen to obtain penalties and attorney fees from the nursing home and to reserve his cause of action pursuant to the MMA in reaching the settlement with the defendants rather than dismissing those claims with prejudice.

Further, the very wording of the NHRBR clearly shows that the PCF was not intended to be liable for penalties and attorney fees in a NHRBR action. The Historical and Statutory notes for La. R.S. 40:2010.6 sets forth the intent of the legislature in enacting the NHRBR. There is an explicit preference that the statute relates to nursing homes, and there is no mention of the PCF or any liability it may incur. The fact that the PCF is not mentioned anywhere in the sections comprising the NHRBR is evidence that the legislature did not intend to make the PCF liable for penalties and attorney fees.

The trial court properly denied the plaintiffs breach of contract claim as he failed to produce any evidence of the existence of a contract between the nursing home and Mrs. Wilcox. The damages in this case flowing from the wrongful death and survival claims are subsumed within any nonpecuniary damages they might be entitled to in contract.

Damages

Lastly, the trial court made appropriate damage awards to the claimants for the survival damages of Mrs. Wilcox and wrongful death claims of her two sons. Mrs. Wilcox’s condition had steadily declined since the early 1990’s and her schizophrenia had rendered her completely incoherent at times. At the time of her death, Mrs. Wilcox was 83 years old and had only months to live according to the trial testimony. The testimony of Dr. George McCormick and Dr. David Henry indicated that Mrs. Wilcox suffered very little when she suffocated because of her poor medical condition, and that any conscious pain or suffering would have been minutes instead of the hours claims by the plaintiffs.

Consequently, the award of $45,000.00 was more than adequate considering that other wrongful death awards that were considerably lower have been affirmed. Tom Wilcox' saw his mother about five times a month |fiin the nursing home, but her mental faculties had reduced to the point that she often did not recognize him. Cliff Wilcox had lived in California since 1977 and would usually only visit his mother one weekend per year. In fact, although his mother was hospitalized several times over the years, he never visited her once in the hospital. Moreover, Cliff did not speak to her over the phone because she had difficulty hearing. Cliff had not spoken to his mother at all during the last year of her life. The awards given to Tom and Cliff Wilcox were more than adequate under the facts of this case.

CONCLUSION

In sum, the trial court correctly denied plaintiffs’ claims against the PCF and did not abuse its vast discretion in the damages awarded for the survival or wrongful death actions.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS and LOLLEY, JJ.

Rehearing denied.


author: COOKS, Judge.

text:
    Delwin WARE v. Allen MITCHELL d/b/a Wheel & Tire Design 2.
    No. 05-1289.
    Court of Appeal of Louisiana, Third Circuit.
    April 12, 2006.

      Michael B. Miller, Crowley, LA, for Plaintiff/Appellee, Delwin Ware.
    Marcus A. Allen, Sr., Lafayette, LA, for Defendant/Appellant, Allen Mitchell d/b/a Wheel & Tire Design 2.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

h Delwin Ware alleged he was injured in an automobile accident while engaged in the course and scope of his employment with Wheel & Tire Design 2. When the employer did not pay benefits, Mr. Ware filed a workers’ compensation claim against Allen Mitchell d/b/a Wheel & Tire Design 2. Trial was set for January 27, 2005. On that date, the parties met in the workers’ compensation judge’s office. When she realized Mr. Mitchell was not yet represented by counsel, the workers’ compensation judge (WCJ) recommended he retain counsel. Mr. Mitchell informed the WCJ that he would retain counsel of record immediately. Mr. Mitchell was advised to have his attorney enroll as counsel and to provide his deposition. The matter was reset for trial on May 11, 2005. Mr. Mitchell acknowledged he received trial notices issued by the Office of Workers’ Compensation.

When the matter came up for trial on May 11, 2005, neither Mr. Mitchell nor any counsel representing him appeared in court. After satisfying herself that Mr. Mitchell was aware of the proceedings and was not present in the building, the WCJ proceeded with the trial resulting in a judgment being rendered in favor of Mr. Ware and against Mr. Mitchell. Mr. Ware was awarded disability benefits, reimbursement of all medical expenses, and a $2,000.00 penalty against the Defendant for failure to pay medical expenses or authorize medical treatment. Attorney fees were initially awarded to Mr. Ware’s counsel in the amount of $200.00 per hour. After going off the record, the WCJ decided to award Mr. Ware’s attorney $250.00 per hour. The following discussion then occurred:

JUDGE MORROW: I think considering the particular difficulties in dealing with an unrepresented party as well as the expectation of | ¡¡additional difficulties—
MR. MILLER (PLAINTIFF’S ATTORNEY): You’re right about that, Judge. It’s not over yet.
JUDGE MORROW: Yes. And I’m just not certain of my authority to award for future, but that certainly is one minor factor that I consider in this award.

Final judgment was signed on May 16, 2005.

On June 7, 2005, a Motion to Enroll was filed by Mr. Mitchell’s present counsel. That same date, Mr. Mitchell filed a Motion and Order for Rehearing, or in effect a Motion for New Trial. On June 15, 2005, a Motion for Appeal was filed by Mr. Mitchell assigning as error the entry of judgment by the WCJ on May 11, 2005. In both motions, Mr. Mitchell alleged he came to the Office of Workers’ Compensation on May 11, 2005. Instead of proceeding upstairs to the courtroom, Mr. Mitchell stated he reported to the check-in area on the first floor and informed the receptionist he was present for the proceeding for which he received notice in the mail. Mr. Mitchell stated he was informed by the receptionist that he was not on the list for the day, and there was no hearing or trial scheduled for him on that date. According to Mr. Miller, he relied on this information and went home. He stated he was not aware that a judgment had been rendered against him until he received a copy of the judgment in the mail.

At the hearing on the motion for new trial, counsel for Mr. Mitchell requested issuance of a witness subpoena to the receptionist that allegedly spoke to Mr. Mitchell on May 11, 2005. The WCJ informed Mr. Mitchell’s counsel that La.R.S. 23:1318 provides “[f|or claims arising under this Chapter, the director or any other office employee shall not be subject to subpoena for the purpose of testifying in any legal proceeding. This prohibition shall extend to depositions and interrogatories, both written and oral.” Counsel for Mr. Mitchell then asked the WCJ if this statute | ¡prevented the receptionist from testifying. The WCJ indicated she did not believe the receptionist could testify, but denied the motion for new trial because it was not timely filed. The WCJ stated as follows:

I am going to deny the motion primarily on the timeliness issue. But I also want to refer — Mr. Mitchell had shown up before. When he did not show up that day I was puzzled and/or surprised because he had shown up for everything else. And, as I said, I do have a rough draft of the transcript. It’s not certified yet, but it does reflect that I asked the bailiff to make sure Mr. Mitchell wasn’t here.
The record needs to reflect that our office is on two floors. We have the reception area on the first floor where people are supposed to check in, and then we have the hearings on the sixth floor. And Mr. Menard, our bailiff, did check the sixth floor and the first floor. The time shows that we waited until 9:55 before we began, and the matter was scheduled for 9:00.
There is certainly some possibility that what Mr. Mitchell says actually occurred. It is possible that someone might have assumed he was an employee, looked for his name as an employee and did not find it.
But, in any event, we did make an effort to make sure he was here or not here before we began. And because I had not received a motion to enroll at that point in time and I — we had continued it before for him to get counsel, I think I was of the mind set that he hadn’t gotten counsel. It was probably, you know — in any event, I went ahead with the trial after I determined he was not here.
So if it were timely, I would have a more difficult problem with the ruling, but I rule on the timeliness issue and deny the motion.

The Motion for Appeal filed by Mr. Mitchell on June 15, 2005 solely addresses the judgment entered by the WCJ on May 11, 2005. In his brief, Mr. Mitchell asserts two assignments of error:

(1) The WCJ erred by awarding “future attorney fees” based upon the expectation of additional difficulties arising.
(2) The WCJ erred in applying La.R.S. 23:1318 to the receptionist and not allowing the receptionist to testify without the issuance of a subpoena.

I. Amount of Attorney Fees Awarded.

Attorney fees were initially awarded to Plaintiffs counsel in the amount of $200.00 per hour. After “going off the record,” the WCJ decided to award Plaintiffs |4attorney $250.00 per hour, and stated it was due to the “expectation of additional difficulties.” Mr. Mitchell has appealed the increased award, arguing the WCJ erred in awarding “future attorney fees.” We agree. An award of attorney fees is appropriately measured by what is done on a case and not what will be done. The factors used to determine attorney fees are the degree of skill and ability exercised, the amount of the claim, the amount recovered, and the amount of time devoted to the case. Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981); Thomas v. Town of Amaudville, 97-1003 (La.App. 3 Cir. 4/22/98), 713 So.2d 547. Counsel for the claimant has not provided this Court with any legal authority suggesting that an attorney is entitled to collect from an unrepresented litigant additional attorney fees based solely on the theory that such cases are more difficult to deal with or the litigant might exercise his right to contest entry of judgment against him. We reject the trial court’s assessment of a greater hourly fee in this case for three reasons: (1) there is no legal authority to support the award; (2) such an award would undermine an unrepresented litigant’s right to access the courts; and, (3) the Rules of Professional Conduct prevent an attorney from collecting a fee for services he has not rendered. Accordingly, we reduce the amount awarded for attorney fees to $200.00 per hour as originally awarded by the trial court.

Plaintiff has answered the appeal seeking additional attorney fees for the work necessitated by the appeal. If a claimant requests an increase in attorney fees, it is usually awarded when the defendant appeals, obtains no relief, and the appeal necessitates additional work by the claimant’s counsel. See Spence v. Industrial N.D.T., 31,744 (La.App. 2 Cir. 3/31/99), 731 So.2d 473. Inasmuch as appellant is entitled to some of the relief he requested, and the task claimant’s counsel faced in obtaining a judgment against an unrepresented defendant was not a particularly |sdaunting challenge, we decline to grant additional attorney fees on appeal.

II. Application ofLa.R.S. 23:1318.

In his second assignment of error, Mr. Mitchell argues the WCJ erred in applying La.R.S. 23:1318 to the receptionist and in not allowing the receptionist to be subpoenaed. We find this issue is not properly before this court. This appeal concerns only the judgment rendered on May 11, 2005. It does not involve the denial of the motion for new trial on August 2, 2005, when Mr. Mitchell first asked to subpoena the receptionist. There was no request for a subpoena for the receptionist at the May 11, 2005 hearing. Mr. Mitchell’s second assignment of error is based upon the motion which was heard on August 2, 2005, not May 11, 2005. As there has been no appeal of that judgment, no relief can be granted by this court.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is amended to award Plaintiffs counsel $200.00 per hour in attorney fees. The judgment is affirmed in all other respects. Costs of this appeal are assessed to Defendant-Appellant, Allen Mitchell d/b/a Wheel & Tire Design 2.

AFFIRMED, AS AMENDED.

      . The Lafayette Office of Workers' Compensation is located in a downtown building in Lafayette. There is a reception or checlt-in area located on the first floor, and the courtroom is located on the sixth floor. Mr. Mitchell was aware that the courtroom was located on the sixth floor, as he met in the WCJ's office located on that floor on January 27, 2005.


text:
    F.M. “Butch” ROBERSON and Pamela Roberson v. LAFAYETTE OILMAN’S SPORTING CLAYS SHOOT, INC. et al.
    No. 05-1285.
    Court of Appeal of Louisiana, Third Circuit.
    April 12, 2006.
    Robert J. Williams, Attorney at Law, Charles, Louisiana, for Plaintiffs/Appellants, F.M. “Butch” Roberson and Pamela Roberson.
    Philip E. Roberts, Roy, Bivens, Judice, Roberts & Wartelle, Lafayette, Louisiana, for Defendants/Appellees, Lafayette Oilman’s Sporting Clays Shoot, Inc. and First Financial Insurance Company.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

|,STATEMENT OF THE CASE

F.M. “Butch” and Pamela Roberson filed suit to recover damages for- injuries sustained when Mr. Roberson fell from a ladder while ascending a trap shooting tower. Plaintiffs appeal the judgment of the trial court granting a Motion for Summary Judgment in favor of Defendants, Lafayette Oilman’s Sporting Clays Shoot, Inc., and its insurer, First Financial Insurance Company. For the reasons assigned below, we affirm the judgment of the trial court.

STATEMENT OF THE FACTS

The Plaintiff, Mr. Roberson, is an officer and employee of R & R Trap Sales and Service, Inc., a corporation in the business of selling and/or renting supplies and equipment to companies which conduct trap shooting events. Lafayette Oilman’s Sporting Clays Shoot, Inc. (Lafayette Oilman) is a Louisiana nonprofit corporation formed in January 1997 for the purpose of holding an annual trap shooting event to raise funds for scholarships for students studying the petroleum industry at the University of Louisiana at Lafayette. Doss Bourgeois serves as vice-chairman of the organization. Lafayette Oilman is insured by First Financial Insurance Company. Louisiana Sporting Clay, Inc. is a business which operated a shooting range on rural property located on Lake Martin Road in Lafayette Parish. Charles Ho-horst is president of Louisiana Sporting Clays, Inc.

In 1999, Lafayette Oilman began preparations for its annual charitable event, the Lafayette Oilman’s Sporting Clays Shoot. The event was originally scheduled to be held in St. Landry Parish, but because of logistical problems, a new venue had to be found. A representative of Lafayette Oilman contacted Louisiana Sporting Clays, Inc., through Charles Hohorst, to inquire about the use of its facility off Lake Martin | cRoad for the weekend of October 8-9, 1999. Arrangements were made for the rental of the facility between Charles Ho-horst and Lafayette Oilman. Although Louisiana Sporting Clays, Inc. leased the facility to Lafayette Oilman, which facility included the trap towers, it lacked the target-throwing equipment necessary to conduct the charitable event. Doss Bourgeois, as a representative of Lafayette Oilman, contacted R & R Trap Sales and Service, through its president, F.M. “Butch” Roberson, to supply the needed equipment. Mr. Roberson had a history of doing business with Louisiana Sporting Clays, Inc. when the facility was being regularly operated. Mr. Roberson stated he was able to supply and install the target-throwing equipment needed for the fund-raiser. The target-throwing equipment is located at the top of the trap towers on the grounds of the facility. The only means of access to the tower is a wooden ladder which was present at the facility before the 1999 tournament.

Mr. Roberson arrived at the shooting range a day or two prior to the event, and ascended and descended the wooden ladder several times prior to the fall. Unfortunately, at approximately 6:00 p.m. on October 9, 1999, while Mr. Roberson was ascending the ladder to retrieve his equipment at the conclusion of the event, the top rung of the ladder dislodged, and he fell approximately sixteen feet to a concrete surface and fractured his leg.

Mr. Roberson, and his wife Pamela, sued Lafayette Oilman, First Financial Insurance Company, Lafayette Oilman’s Association, through Doss Bourgeois, Charlie Hohorst, individually and d/b/a/ Louisiana Sporting Clays, Inc. The Defendants, Lafayette Oilman and First Financial Insurance Company, filed a Motion for Summary Judgment. The trial court granted the motion and dismissed the Plaintiffs’ claim against Lafayette Oilman’s Sporting Clays Shoot, Inc. and First Financial Insurance Company. The Plaintiffs appeal asserting the following 1 ¿assignments of error:

1. The trial court erred in finding the Defendants owed no duty to the Plaintiffs.
2. The trial court erred in finding the Defendants did not breach the duty owed to the Plaintiffs.
3. The trial court erred in finding O.S.H.A. regulations do not apply in this instance.

LAW AND DISCUSSION

Mr. Roberson contends the wooden ladder created an unreasonable risk of injury, and Lafayette Oilman had a duty to inspect the ladder for defects prior to the event. He contends a reasonable inspection of the wooden ladder would have identified the defect and adding three twelve-penny nails to either end of each rung would have prevented the accident. In support of their position, the Plaintiffs submitted the affidavit of Gary S. Nelson, a technical consultant in the field of safety engineering, safety management, human factors engineering, and occupational health engineering. Mr. Nelson inspected the ladder subsequent to the accident and found the rung was affixed to the ladder using only two eight-penny nails, which he opined was inadequate to insure the rung would not detach. He concluded the ladder posed an unreasonably dangerous condition to individuals ascending and descending the ladder. Further, Mr. Nelson opined “[ujnder federal regulations, every employer is obligated to furnish to each employee employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” (emphasis in original).

Duty under La.Civ.Code art. 2317.1.

It is undisputed Lafayette Oilman leased the facility from Louisiana Sporting Clays, Inc. for the weekend of October 8-9, 1999, and it contracted with Mr. Roberson to provide the equipment needed to conduct the fund-raising event. The issue presented for our review is whether Lafayette Oilman, as the weekend lessee of |fithe facility, knew or should have known of the defective rung on the ladder which caused injury to an individual providing services for the event. Liability for damage caused by the ruin, vice, or defect of things in one’s custody and control is found in La. Civ.Code art. 2317.1, which provides, in relevant part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Under this provision, in order to recover for damages, a plaintiff must prove: (1) the thing was in the defendant’s custody and control; (2) the thing contained a defect which presented an unreasonable risk of harm to others; and (3) the defendant knew or should have known of the defect. Pamplin v. Bossier Parish Community College, 38,533 (La.App. 2 Cir. 7/14/04), 878 So.2d 889, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266. In a lessor/lessee situation, whether a lessee has custody and control of the leased premises sufficient to impose a duty of reasonable care is a question of fact. Id. See also Mix v. Krewe of Petronius, 95-1793 (La.App. 4 Cir. 5/22/96), 675 So.2d 792. The court in Pamplin stated:

The Louisiana Supreme Court has ruled that in the cases involving a bifurcation between the ownership and possession of a defective thing, such as in the lease setting, “[w]hether the law imposes a duty of garde ... is a factual inquiry.” Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461 (La.1991). In other words, contrary to the State’s argument, the court is not presented with a question of law in this context regarding duty or with a question which is decided solely by the language of the lease to which the plaintiffs were not privy. The lease setting creates a factual dispute regarding the “duty of garde,” resulting in Article 2317.1 fault against either the lessor or lessee.

Pamlin, 878 at 893.

However, as noted in Pamplin,

I fi[W]ith the elimination of strict liability, the “duty of garde” in a lease setting under Article 2317.1 has become overshadowed by the issue of notice or knowledge of the defect. This notice or knowledge of the defect now creates a negligence duty to protect guests on the leased premises from known defects which is uniformly applicable to both lessor and lessee alike.

Id. at 894 (emphasis in original).

In Pamplin, a jury found both the State, as lessee, and the School Board, as lessor, liable to a student who slipped and fell on a wet drain plate on the campus of a community college. The appellate court reversed the jury verdict with regard to the State finding the plaintiffs failed to prove the State had prior knowledge or constructive notice that the wet drain plate presented an unreasonable risk of injury to students.

In the present case, Doss Bourgeois, vice-chairman of Lafayette Oilman, testified he leased the facility for the weekend event from Mr. Hohorst. He walked around the facility with Mr. Roberson to determine where the target throwing machines would be set up, but it was Mr. Roberson’s responsibility to set up the machines at the top of the wooden tower. The defective rung was not visibly apparent to either Mr. Bourgeois or Mr. Roberson because both men used the ladder without incident on several occasions prior to and during the course of the event. Mr. Bourgeois testified “a lot of people went up and down the ladder.... I know I probably went up there once before Butch even getting there, to make sure no wasps and stuff like that were there probably. I don’t recall if I was up there when the machine was put up. I’m gonna say a couple of times probably.” He stated: “[I]f I’d have found something loose or didn’t look right, I would have done something about it.” Neither Mr. Bourgeois nor Mr. Roberson testified they observed anything to raise a suspicion that the rung may give way during use. There was no indication the rung was rotten, loosely attached or defective in any way and there was no prior warning 17the rung might detach from the ladder. Moreover, Lafayette Oilman did not use the property on a regular basis and was in possession of the property where the ladder was located for a very limited time. The facts in this case are similar to those in Bush v. XYZ Insurance Co., 38,867 (La.App. 2 Cir. 8/18/04), 880 So.2d 953. In Bush, a customer sued a store for injuries when a chair he was sitting on in the store collapsed. Although employees of the store had routinely tightened the screws on the chair, the evidence indicated the chair collapsed because of a defective metal weld hidden in the chair. The appellate court found the evidence failed to show anyone from the store either knew or should have known that the chair was defective and would collapse. We do not find the law imposes a duty on Lafayette Oilman, as a temporary lessee, to do more than it did to inspect the rungs for defects on the day of the event. There is no evidence to suggest an inspection several days prior to the event would have even exposed the non-apparent defect. The rung may have loosened because of repetitive use during the event, in which case, a normal inspection would not have uncovered the defect.

O.S.H.A. Regulations

The trial court found that O.S.H.A. regulations, which provide industry safety standards, were inapplicable. The record indicates Mr. Roberson was not an employee of Lafayette Oilman or Louisiana Sporting Clays, Inc. Therefore, the trial court was correct in finding O.S.H.A. regulations inapplicable.

In the present case, we do not find Lafayette Oilman knew or should have done more to discover the defective rung prior to the accident. Accordingly, we affirm the judgment of the trial court granting the summary judgment in favor of Lafayette Oilman and its insurer.

IsDECREE

Based on the foregoing review of the evidence, we affirm the judgment of the trial court granting the Motion for Summary Judgment in favor of Lafayette Oilman’s Sporting Clays Shoot, Inc., and its insurer, First Financial Insurance Company. All costs of this appeal are assessed to F.M. “Butch” and Pamela Roberson.

AFFIRMED.