author: GASKINS, J.

text:
    Joseph Brandon LOCKE, Plaintiff-Appellee, v. Lonnie Dale YOUNG, Jr., et al., Defendants-Appellants.
    No. 42,703-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2007.

      Jeansonne & Remondet, by Michael J. Remondet, Jr., Lisa C. McCowen, Lafayette, for Appellant, RPM Pizza, LLC, d/b/a Domino’s Pizza.
    Phelps Dunbar, LLP, by H. Alston Johnson, III, Baton Rouge, Powers, Sellers, Mixon & Chapoton, by Douglas M. Chapoton, Sam N. Gregorio, Roy S. Payne, Shreveport, for Appellee, Joseph Brandon Locke.
    Before GASKINS, PEATROSS, and DREW, JJ.
   GASKINS, J.

hln this tort case, the trial court awarded judgment in favor of the plaintiff, Joseph Brandon Locke, who was seriously injured when his motorcycle collided with a car driven by a pizza deliveryman. The defendant pizza company appeals, contending that the trial court erred in assessing no fault to the plaintiff. The defendant also complains that the awards of $1,100,000 in future lost wages and lost earning capacity and $1,950,000 in general damages are excessive. The plaintiff answered the appeal, asserting that the awards for future medical expenses and for future lost wages and lost earning capacity were inadequate. We amend the trial court judgment and, as amended, affirm.

FACTS

At about 9:00 p.m. on February 20, 2004, Joseph Locke, a 22-year-old LSUS senior, was riding his motorcycle north on Pines Road in Caddo Parish. Lonnie Young, a 20-year-old Domino’s Pizza deliveryman, was going south when he turned left into a parking lot. As a result of this maneuver, the motorcycle and the car collided. Locke was seriously injured; as a result, he has no memory of the accident.

Locke filed suit in April 2004. Initially named as defendants were Young; his insurer, Illinois National Insurance Company; and his employer, RPM Pizza, LLC, d/b/a Domino’s Pizza. Added later were New Hampshire Insurance Company and Clarendon America Insurance Company, who were alleged to be RPM Pizza’s liability carriers.

Prior to trial, Illinois National Insurance Company settled and was dismissed; its insured was dismissed insofar as his personal exposure was |2concerned. The plaintiff reserved his rights against the remaining defendants. New Hampshire Insurance Company and Clarendon America Insurance Company likewise settled and were dismissed, leaving RPM Pizza as the remaining defendant. The various settlements amounted to slightly more than $1.5 million.

The trial court granted a pretrial Dau-bert motion by the plaintiff to exclude the testimony of expert witness Stephen Kill-ingsworth who had been retained by Clarendon America Insurance Company. In so doing, the court found fault with Kill-ingsworth’s methodology in concluding that the speed of the motorcycle was a factor in the accident. This court denied writs on the basis that exercise of its supervisory jurisdiction was not warranted; the Louisiana Supreme Court also denied writs.

A bench trial was held in October 2006. At the conclusion of trial, the trial judge gave oral reasons for judgment. The court found that the accident occurred due to the sole fault of Young in making an improper left turn. However, it found no fault by Domino’s on the claim of negligent hiring or training.

The trial court awarded a total of $3,835,352 in damages to the plaintiff. The defendant was deemed entitled to a credit of $1,520,000 for the amounts given in settlement by the insurers and the credit provided under La. R.S. 32:866(A) due to the plaintiffs lack of mandatory insurance | acoverage. Judgment was signed October 31, 2006. In December 2006, RPM Pizza filed a suspensive appeal.

In March 2007, a judgment for costs and expert witness fees was signed, reflecting the sum of $60,000. The defendant filed a devolutive appeal as to this judgment to preserve its right to object should the main judgment be reversed or modified.

DAUBERT HEARING

The defendant argues that the trial court should not have excluded the testimony of Stephen Killingsworth, an accident reconstructionist. It contends that since the plaintiff is unable to recall the accident itself and the accident occurred in the plaintiffs lane of travel, this defense witness’ testimony was especially important. The defense wished to use Killings-worth’s testimony to establish its theory that a vehicle between Young’s car and the motorcycle blocked Young’s view of the motorcycle and that the plaintiff was speeding.

In his brief, the plaintiff claims that the trial court correctly excluded Killings-worth’s testimony due to his faulty methodology and unsupported assumption of the motorcycle’s position when Young began his left-hand turn. However, he notes that, since a jury trial was waived and the judge who heard the motion in limine was also the trial judge, the trier of fact in the instant case had the benefit of hearing Killingsworth’s testimony and found it baseless.

| ¿Law

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill or experience may testify thereto in the form of an opinion. La. C.E. art. 702. The admission of expert testimony is proper when the following three factors are established: (1) the expert is qualified to testify competently regarding the matters he intends to address, (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert, and (3) the testimony assists the trier of fact through the application of scientific, technical or specialized expertise. Cheairs v. State ex rel. Department of Transp. and Development, 2003-0680 (La.12/3/03), 861 So.2d 536.

In Daubert, the court established factors for evaluating the methodology employed by expert witnesses, including the “testability” of the scientific theory or technique, whether the technique has been subjected to peer review and publication, the known or potential rate of error, and whether the methodology is generally accepted in the scientific community. A district court is accorded broad discretion in determining whether expert testimony is admissible and who should be permitted to testify as an expert. Cheairs, supra; In re Succession of Pardue, 40,177 (La. App.2d Cir. 11/8/05), 915 So.2d 415, -writ denied, 2006-0125 (La.4/28/06), 927 So.2d 284.

IfiThe Daubert factors are designed to “assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue.” Cheairs, supra.

Discussion

In his report, Killingsworth opined that Locke was traveling a minimum of 56 to 58 mph before the collision. (The record indicates that the posted speed limit was 40 mph.) However, the report does not contain a single calculation or any recorded measurements of time or distance. Kill-ingsworth subsequently testified that he relied upon Young’s deposition and the police report. Killingsworth also met Young at the accident scene more than two years after the accident and had Young do a “turning exercise” in which he made the same left-hand turn multiple times. According to Young, there was a car trying to exit at the parking lot entrance he intended to use; as a result, he chose to turn in at a closer entrance where the accident occurred.

Killingsworth assumed that the motorcycle was about 150 feet from the point of impact and the turn took 1.75 seconds, for a motorcycle speed of 85 feet per second or 58 mph. The measurement of 150 feet was not based on physical evidence, but upon Young’s statement that a car at an | f,entrance farther down the road exited the lot and turned. Killingsworth also assumed that the exiting car Young claimed to have seen turned at the same time that Young did. He further applied an assumption that, since Young said he did not see the motorcycle, the motorcycle was not there to be seen. He asserted that it was not reasonable to think that Locke was closer than 150 feet from the point of impact when Young started to turn because Young said he didn’t see him. However, he conceded under questioning by the trial judge that the motorcyclist was there to be seen by Young immediately before the collision, but was not seen.

Rahn Huffstutler, a licensed professional engineer who was accepted as an expert in accident reconstruction and metallurgical engineering for purposes of the Daubert hearing, testified that Killingsworth’s methodology was questionable. The equation of distance divided by time equals speed; according to Huffstutler, they have neither the time nor the distance to plug in the equation and it is unscientific to assume a value for two of the variables in order to give an opinion on the results. Because it is simple division, Huffstutler testified that Killingsworth’s approach brought no science to bear on the analysis. He further testified that this approach is not a generally accepted practice among accident reconstruction experts. Nor is it a testable, reproducible approach or peer-reviewed. Huffstutler observed that there was no way to scientifically corroborate Young’s testimony that he did not see the motorcycle.

Rod Scobee, the supervisor for accident reconstruction for Troop G of the Louisiana State Police, was hired by the plaintiff. He testified that, in |7the high speed crashes he routinely investigates, the damage to the vehicles and the distances from the point of impact to the final resting point of the motorcycle and its driver are usually much greater than the ones found in the present case. When he visited the accident site and reviewed the photos and measurements, he found nothing suggestive of the motorcycle exceeding the speed limit.

Corporal William Vincent, a Shreveport Police Department crash investigator, testified that he was called to the accident scene shortly after the collision. He painted the markings on the road that indicated where the skid marks started and stopped, and he was present when the police photos were taken. Relying upon the physical evidence, he determined that high speed was not involved.

At the conclusion of the hearing, the trial court granted the plaintiffs motion insofar as it dealt with Killingsworth’s rate, time and distance calculations. According to the court, Killingsworth’s analysis was not scientific inquiry but the application of arithmetic: “It’s arithmetic to assumptions and the Court is not comfortable with those assumptions.” The court also found that Killingsworth applied a flawed major premise that Locke’s motorcycle could not be seen because Young failed to see it. The court did not believe that there was sufficient foundation for the assumption of the amount of time it took Young to make his left-hand turn.

The trial court’s decision to grant the plaintiffs Daubert motion was based upon its conclusion that the methodology underlying Killingsworth’s testimony was not scientifically valid on the issue of his rate, time and | Sdistance calculations. The trial court has broad discretion in determining admissibility of expert testimony. In light of the testimony presented, especially that of Huffstutler as to the ease with which the calculations could be manipulated, we find no abuse of this discretion.

The defendant’s argument that the granting of the motion by the trial court placed it at a disadvantage at trial ignores the fact that the case was tried in a bench trial before the same judge who ruled upon the motion. The trier of fact in the instant case had the full benefit of all of Killings-worth’s testimony and opinions and found them lacking in the methodology required under Daubert, supra.

LIABILITY

The defendant contends that, in light of evidence indicating that the plaintiff might have been speeding, it was inappropriate to assess all liability to its employee; it asserts that the fault should be assessed equally between Young and Locke. The plaintiff asserts that there was no eyewitness testimony that he exceeded the speed limit. Also, the senior accident recon-structionist from the Shreveport Police Department testified that, when he investigated the accident scene, he was looking for evidence of high speed by the motorcycle and found none.

Law

A left turn is one of the most dangerous maneuvers a motorist may execute and, before attempting, a motorist must ascertain whether it can be completed safely. Toston v. Pardon, 2003-1747 (La.4/23/04), 874 So.2d 791. In a vehicular collision case, plaintiffs are afforded the benefit of a ^presumption of the defendant’s negligence when they prove that the defendant executed a left-hand turn and crossed the center line at the time of the impact. Miller v. Leonard, 588 So.2d 79 (La.1991); Slagel v. Roberson, 37,791 (La. App.2d Cir.11/18/03), 858 So.2d 1288, writ denied, 2003-3508 (La.3/12/04), 869 So.2d 824. The burden rests on the motorist who desires to make a left turn to explain how the accident occurred and to show that he is free from negligence. Silva v. Calk, 30,085 (La.App.2d Cir.12/10/97), 708 So.2d 418; Slagel v. Roberson, supra. Nonetheless, all motorists on Louisiana highways must drive with due regard for the traffic on the highway and have an affirmative duty not to drive faster than is reasonable and prudent under the conditions and potential hazards existing at the time. La. R.S. 32:64(A); Lennard v. State Farm Mutual Automobile Insurance Company, 26,396 (La.App.2d Cir.1/25/95), 649 So.2d 1114. Thus, notwithstanding the presumption of negligence attributed to a left-turning driver, a favored motorist can still be assessed with comparative fault if his substandard conduct contributed to the cause of the accident. Slagel v. Roberson, supra.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept, of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of a factual issue was reasonable in light of the record as a whole. Nelson v. Southeast Food, Inc., 39,157 (La.App.2d Cir.1/28/05), 892 So.2d 790. Where there are two permissible views of the evidence, the fact finder’s |inchoice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

Discussion

Corporal William Vincent, the most experienced reconstructionist on the Shreveport Police Department, testified that he participated in the investigation of the accident scene. According to him, the collision occurred and the motorcycle’s skid marks began in the plaintiffs lane of traffic. The distance between the area of impact and the spot where the motorcycle came to rest was not significant. After reviewing the evidence, he chose not to refer the matter to the district attorney’s office; instead, Young received and paid a ticket for failure to yield, and Locke was not cited. Corporal Vincent noted that, to an untrained eye, a motorcycle may appear to be going faster than it actually is due to its size and design.

Kenneth and Reba Cook, an older married couple, testified by deposition that they were stopped at a red light near the accident scene when they saw Locke pass through the same intersection moments before the collision. The police report contains a recitation signed by them and Mrs. Cook’s mother that they “[s]aw motorcycle cross Buncomb Rd. in front of us at high rate of speed.... ” According to the Cook couple, that language was the officer’s which he wrote down after speaking to them. Mr. Cook testified that he could not say how fast the motorcycle was traveling; he stated, “[I]t seemed to me like he was going, you know, reasonable fast. But when you’re sitting still — you know, I don’t know.” While acknowledging that she thought the motorcycle was traveling at a high rate of speed, Mrs. InCook conceded that she did not know the motorcycle’s speed. Nor could she say it was traveling too fast under the circumstances.

Two Domino’s employees, June Haley and Ada Banks, testified that they were at the accident scene and heard a female police officer identified as Corporal Tisha Lensey make a statement that Locke was going to be ticketed for speeding. However, Ms. Banks further testified that Ms. Haley was not at the accident scene when she was there; rather, she talked to her via cellphone and told her what Corporal Lensey said. Ms. Haley testified that she was at the accident scene and that she talked to several people, including Corporal Lensey and Ms. Banks. Corporal Len-sey testified that she was stopped at a nearby convenience store writing a report in her car when she learned of the accident from a passerby. She stated that she did not recall making a statement to anyone that she was about to pull Locke over for speeding at the time of the accident.

In its oral reasons for judgment, the trial court assessed 100 percent fault to Young, finding that the sole cause of the accident was his improper left turn. The court concluded that the Cooks were not in a position to say Locke was speeding at the time of the wreck. As to the statement allegedly made by Corporal Lensey, the court noted that she denied making any statement about speeding. It found the officer’s credibility unshaken by the testimony of the Domino’s employees, which conflicted substantially with each other.

We find no manifest error in the trial court’s ruling that Young was solely responsible for the accident. As the trier of fact in this bench trial, l^the trial judge was in the best position to evaluate the credibility of the witnesses. His resolution of the conflicting evidence was reasonable.

QUANTUM

The trial court awarded damages in the following amounts:

$ 177,852 for past medical expenses
$ 500,000 for future medical expenses
$ 107,500 for past lost wages
$1,100,000 for future lost wages and earning capacity
$ 500,000 for injuries to his knee
$ 300,000 for injuries to his anide
$ 150,000 for injuries to his hand
$ 175,000 for injuries to his elbow
$ 150,000 for brachial plexus injuries and resulting atrophy
$ 150,000 for two bulging discs $ 125,000 for cerebral brain dysfunction
$ 150,000 for scarring and disfigurement
$ 250,000 for loss of enjoyment of life.
Total $3,835,352

The defendant does not contest the awards for past medical expenses, future medical expenses, or past lost wages. It complains of as excessive the award of $1.1 million for future lost wages and earning capacity and the general damage awards totaling $1,950,000 for pain and suffering for Locke’s various injuries, scarring and disfigurement, and loss of enjoyment of life. The defendant contends that the plaintiff, while grievously hurt, is a highly motivated achiever making a remarkable recovery with the aid of very competent medical care.

The plaintiff appeals as inadequate the awards for future medical expenses and for future lost wages and earning capacity. As to the quantum issues raised by the defendant, the plaintiff recounts the severity of his injuries, which included a traumatic brain injury and the near traumatic amputation of his right leg, and the medical testimony that projects future | ^deterioration of his condition, the necessity of narcotic medications for pain, and the need for additional medical treatment, including multiple surgeries.

Future medical expenses

The plaintiff argues that the award of $500,000 for future medical costs was inadequate and that the court should have awarded $822,105.

The cost of future medical treatment and expenses cannot be precisely measured; however, the plaintiff must still establish future medical expenses with some degree of certainty through medical testimony that such expenses are indicated and their probable cost. Sepulvado v. Turner, 37,912 (La.App.2d Cir.12/10/03), 862 So.2d 457, writ denied, 2004-0089 (La.3/19/04), 869 So.2d 855; Lewis v. State Farm Insurance Company, 41,527 (La. App.2d Cir.12/27/06), 946 So.2d 708.

Zoe Meeks, the plaintiffs expert in economics, testified that the plaintiff would be entitled to future medical costs of $838,105 or $822,105 if the court found that the plaintiff would not require a patellectomy and elbow replacement. These computations included a discount rate of five percent and average annual growth rates ranging from 4.6 percent to 9.4 percent, depending upon the types of medical expenses. Dr. Melvin Harju, the defendant’s expert economist, testified that the growth rate for medical services used by Ms. Meeks is unsustainable. In its oral reasons for judgment, the trial court stated that it found Dr. Harju’s testimony persuasive and noted that the record indicated that the “raw costs” for the plaintiffs future medical expenses would be about $411,000.

|uIn support of his argument, the plaintiff cites Odom v. City of Lake Charles, 2000-01050 (La.App. 3d Cir.1/31/01), 790 So.2d 51, writ denied, 2001-1198 (La.6/22/01), 794 So.2d 787, in which the appellate court increased an award for future medical expenses. There the trial court had awarded an amount very close to the present-day value of the future medical expenses as computed by the defendant’s expert; he used a lower growth rate than the one used by the plaintiffs expert because he anticipated that the federal government would force the reduction of medical costs.

In the instant case, the trial court noted that it found convincing Dr. Harju’s concerns about the unsustainability of the projected rate of increase of medical services. Nonetheless, anticipating that the medical costs -will escalate more than the investment rate, at least for the near future, the trial judge increased the medical costs as submitted by the defendant by $90,000. We find that the trial court did not err in failing to award the amount sought by the plaintiff in view of the trial court’s position that the plaintiffs condition was not as dire as his experts contended.

Future lost earnings

As to the award of $1.1 million pertaining to the plaintiffs future earnings, the defendant noted that the trial court did not accept the testimony of the plaintiffs witnesses as to the direness of his future employment. However, the trial court’s award was closer to the estimate of $1.5 million provided by the plaintiffs expert, as opposed to the amount of $34,429 suggested by the defendant’s expert. The defendant argues that this J^award should be reduced to “reflect more closely the trial judge’s expressed uncertainty about what the amount should be.”

In his answer to the appeal, the plaintiff contends that the award of $1.1 million for future lost wages was inadequate; he claims that the court should have awarded $1,435,775.

The discretion of the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Greenhead Gun Club, L.L.C. v. City of Shreveport, 40,045 (La. App.2d Cir.10/12/05), 914 So.2d 62.

A plaintiff bears the burden of proving his claim for lost earnings. For purposes of determining this type of damages, the amount of lost earnings need not be proved with mathematical certainty, but by such proof as reasonably establishes the claim. Lewis, supra.

Since awards for future lost income are inherently speculative and intrinsically insusceptible of being calculated with mathematical certainty, the courts must exercise sound judicial discretion to determine these awards. Lewis, supra. The awards should be consistent with the record and not work a hardship upon either party. Robbins v. State ex rel. Dept, of Labor, 31,590 (La.App.2d Cir.2/24/99), 728 So.2d 991.

The plaintiff presented testimony from his witnesses to the effect that, as a result of his physical injuries, he was currently capable of sedentary and light duty work on a regular basis, but that he would eventually be relegated to sedentary work only. According to his experts, the plaintiffs physical condition will worsen as he grows older, largely due to arthritis in multiple 11fijoints, and his work life will be significantly shortened. Due to the closed head injury he sustained in the accident, pessimism was expressed by these witnesses as to Locke’s ability to earn an MBA degree which would increase his employment opportunities and enhance his earning ability. The plaintiff maintains that an award of $1,435,775 would be more appropriate than the $1.1 million given by the trial court.

On the other hand, the defendant’s experts opined that Locke had essentially suffered little more than a delay in entering the job market and had lost access to some jobs. The defendant contended that the plaintiff can be made whole on this issue by an award of $34,429.

In its oral reasons for judgment, the trial court found that the plaintiff was entering the job market at a competitive disadvantage and with a need for a specialized setting as a result of his injuries. However, the court believed that the plaintiff will be able to work longer than the 19 years projected by his experts, most likely working up to 25 years. The court found that the plaintiff is an achiever who will do very well considering his problems; however, he will need surgeries which will disrupt his employment. Also, his pain will increase over time, making him less competitive.

After a careful review of the evidence, we agree with the trial court’s conclusion that Locke’s employment future is neither as bleak as his experts predicted nor as rosy as the defendant’s experts portrayed. A more valid assessment indicates that Locke has sustained serious injuries which will continue to affect his employment situation for the rest of his life. Not only 117will he suffer pain and physical restrictions, but he will also have to interrupt his employment periodically to undergo surgeries for various physical maladies which are certain to materialize over time. However, Locke is, by all accounts, a remarkable young man who has made great strides in his recovery due to his own perseverance and discipline. The court relied heavily upon Dr. Paul Ware’s opinion that the plaintiff suffered mild cognitive impairment and that he can use adaptive measures to greatly reduce the resulting problems. Dr. Ware also opined that vocationally Locke is limited only by his physical injuries and that he has no significant mental impairment.

We find that the trial court properly applied sound judicial discretion and awarded an amount which is consistent with the record.

General damages

The $1,950,000 award for general damages should be reduced to between $750,000 and $1 million, according to the defendant.

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty, including pain and suffering. Hunt v. Safeway Insurance Company, 35,306 (La.App.2d Cir.12/5/01), 804 So.2d 724. The discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. La. C.C. art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of |isthe particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Hunt, supra.

Only after an abuse of discretion is disclosed by an articulated analysis of the facts is an examination of prior awards in similar cases proper; an abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. Hunt, supra. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Manuel v. State Farm Mutual Automobile Company, 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277.

As a result of the accident, Locke suffered several serious injuries to his right side. The most serious injury was a right open knee dislocation; initially, the doctors were not certain if they could save that leg. The attending physician, orthopedic surgeon Dr. Kalia Sadassivan, described the injury as one in which the lower leg and the upper leg were no longer together, with a small skin bridge connecting the thigh to the lower leg. The day after the accident, the doctors performed an open reduction and internal fixation of the right knee with an external fixator which remained in place for more than a month. Two days later, additional surgery, including debridement, was performed. Since then, Locke has had two arthroscopic | ^surgeries, and the evidence indicates that he will require more. The medical witnesses also testified that Locke has extensive scar tissue and severe post-traumatic arthritis which will increase over time. He also has a small limp due to pain and a slight leg length discrepancy. According to Dr. David Waddell, an orthopedic surgeon specializing in reconstructive knee surgery who began treating him in June 2005, Locke will more probably than not require a total knee replacement before age 40. Due to Locke’s youth and the fact that a knee replacement will last only about 20 years, Locke will probably require a second total knee replacement. Dr. Austin Gleason, an orthopedic surgeon, and Dr. Howard Katz, a specialist in physical medicine and rehabilitation, concurred. While Dr. Robert Holladay, an orthopedic surgeon who testified for the defendant, agreed that one total knee replacement would be required, he opined that a second one was only a possibility. Locke testified that his kneecap is numb and his range of motion is limited. He experiences pain when he stands for long periods of time and, due to instability in the knee, he must restrict his activities.

The trial court accepted the testimony that Locke will more probably than not require two total knee replacements. It awarded general damages of $500,000 for the injuries he sustained to his knee. Given the extensive damage caused to the knee, the number of surgeries he has undergone already and will undergo in the years to come, and the substantial pain he has suffered and will continue to suffer due to this injury, we find no abuse of the trial court’s discretion.

| apLocke also sustained a fracture of the anterior distal tibia at the ankle joint. The February 23, 2004, surgical report of the doctors who treated Locke after the accident indicated that they did not think that they could repair the ankle. About a month after the accident, he underwent surgery on his ankle which involved a graft of bone from his hip and the placement of plates and screws; they also performed a capsular release in the back part of his ankle. According to Dr. James Lillich, an orthopedic surgeon specializing in foot and ankle surgery who saw him once in June 2005, Locke has reduced range of motion for inversion and eversion (movements of the sole of the foot inward and outwards) which are most likely permanent. Dr. Lillich recommended arthroscopic debridement surgeries at intervals of five years if the surgery brought good results. Otherwise, he opined that within five to 10 years of the accident, Locke would probably require either an ankle fusion or ankle joint replacement. He believed that Locke was too young to be a candidate for an ankle joint replacement because he would wear it out. A fusion would cause a loss of flexion of the foot at the ankle joint. If a fusion was done, an ankle replacement at a later date would not be possible. Drs. Gleason and Katz concurred with Dr. Lillich’s conclusions; however, Dr. Holladay testified for the defendant that he believed that an ankle fusion was only a possibility, not a probability. Locke testified that the pain in his ankle is constant and the ankle is always swollen. As a result of the swelling, he has had to have several surgeries for ingrown toenails.

Li The trial court awarded $300,000 for injuries to Locke’s ankle, concluding that he will eventually require an ankle fusion surgery. Given the severity of this injury and the medical certainty of future surgical intervention, we find no abuse of the trial court’s much discretion.

Locke, who is right-handed, also injured his right hand in the accident. Dr. Marion Milstead, an orthopedic surgeon with a subspecialty in hand and upper extremity surgery, testified about the fracture of Locke’s fifth metacarpal, its repair, and the development of significant arthritis in the fifth carpometacarpal (CMC) joint. According to Dr. Milstead, the fracture was repaired with pins; however, the pins were removed, and the bone re-dislocated and healed. (As to Locke’s ability to heal, the doctor noted that a patient who has multiple injuries may take longer to heal because of the demands placed on his body.) He concluded that at some point, as the pain worsens, a surgical procedure will be required; he recommended a fusion of the fifth CMC joint within five to 10 years of the accident. Fusion will freeze the fingers in place and prevent Locke from making a cupping movement with his hand. Dr. Milstead also testified that, due to the arthritic pain, Locke will be on Celebrex for the rest of his life. Drs. Gleason and Katz concurred with Dr. Mil-stead’s recommendation of fusion surgery; Dr. Holladay, however, believed it was not necessary. Locke testified that his right hand aches constantly, and there is pain on the little finger side and between the fourth and fifth fingers. His right-hand grip strength was normal for his age and gender but less than that for his left hand.

| ai;The trial court awarded damages of $150,000 for the injuries to Locke’s hand. Again, we find no abuse of the trial court’s discretion.

Locke suffered a radial head fracture to his right elbow, which healed. Unfortunately, he developed arthritis in the joint due to the damage to the cartilage. According to Dr. Milstead, Locke will more probably than not require a radial head resection within five to 10 years of the accident to reduce his pain. Drs. Gleason and Katz agreed with this conclusion. Additionally, Dr. Milstead opined that Locke will more probably than not need arthroscopic debridement before the resection. He also observed that there is a loose fragment of cartilage in the joint which could increase his arthritis and should be removed. However, Dr. Mil-stead was unable to say that a total elbow replacement was, more probably than not, required. While Dr. Holladay did not believe that either a total elbow replacement or radial head resection was needed, he suggested that the loose body in the elbow be removed. While at the upper range of the trial court’s discretion, we find no abuse in the trial court’s award of $175,000 for the injuries to Locke’s elbow; the trial court specified that this amount took into consideration the necessity of the radial head resection.

The brachial plexus injuries Locke sustained and the resulting atrophy resulted in an award of $150,000 in general damages. Dr. Milstead testified that this injury to the nerves going into Locke’s right shoulder, arm and forearm is permanent. There is no surgical option. While weightlifting might help the shoulder, there would be a risk of injuring the elbow. As a result of this injury, Locke has limitations to his range of motion; while the 18Srange of motion in his shoulder will probably remain the same, that in his hand, wrist and elbow will worsen over time. According to Dr. Milstead, he is also at greater risk of dislocating his shoulder due to the lack of muscle stabilization. He has complete atrophy of the deltoid, supraspinatus, and teres muscles; there is a significant cosmetic problem. Dr. Gleason testified that Locke had full range of motion on the right shoulder; however, his right upper mid-arm is about two inches smaller than the left one. While the award of $150,000 appears to be in the upper range for this injury, we are unable to say that the trial court abused its vast discretion.

As to the $150,000 award for two bulging discs, we find that the record contains comparatively little evidence. While his testimony of the issue was somewhat vague, Dr. Gleason indicated that surgery for these discs was a distant probability. Locke testified that he had low back pain daily. Sitting or lying down tended to aggravate it if he stayed in one spot. The record indicates that Locke had no complaints of low back pain before the accident. We find that, on this record, the trial court abused its discretion in this award. We therefore lower it to the highest amount that the trial court could have awarded, or $75,000.

The trial court awarded $125,000 for Locke’s cerebral brain dysfunction. Locke recounted having no memory of the accident; he recalled an hour before the accident and then the following night at the hospital. He had to take off a year from college to recover and then went back to finish his degree; however, he stated that he had greater difficulty in | ¡^school than before. In particular, he had more trouble retaining information and had to study harder. According to Dr. Paul Ware, who is a psychiatrist and neurologist, Locke sustained a closed-head concussion disorder to the brain with mild cognitive impairment, appearing as a short-term recording memory difficulty. According to the testimony of Dr. Mark Vigen, a clinical psychologist who consulted with two other doctors on neuropsycho-logical tests on Locke, he has visual and auditory memory problems; however, he has a positive working memory. While Dr. Vigen felt it was unlikely that Locke could earn an MBA degree now, Dr. Ware believed that he could. The trial court accepted Dr. Ware’s testimony as the best analysis of the situation — that Locke has minimal cognitive impairment and can use adaptive measures to greatly reduce the problem. The trial court described the plaintiffs impairment as, not a major hurdle, but a problem that will become a hill he has to traverse daily. We find that the trial court correctly assessed the situation and that its award was not an abuse of its discretion.

As a result of his injuries, Locke has several scars on the right side of his body. In particular, he has severe scarring on his right leg. He also has visible atrophy in his right arm and right leg. His right upper mid-arm was four to five centimeters less in circumference than the left one. His right thigh was at least four centimeters smaller than the left thigh. While Locke stated he was not embarrassed by the scarring, he testified that he was a hsserious bodybuilder before the accident and that he now dresses to conceal his right arm. While Locke is certainly entitled to an award for his scarring and disfigurement, we find that the trial court’s award of $150,000 was excessive. We lower it to the highest award the trial court could have awarded, or $100,000.

The trial court also awarded $250,000 for loss of enjoyment of life. Loss of enjoyment of life, sometimes known as hedonic damages, refers to the detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed. Loss of enjoyment of life is conceptually distinct from other components of general damages, including pain and suffering. Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. Loss of enjoyment of life, in comparison, refers to detrimental alterations of the person’s life or lifestyle or the person’s inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. In contrast to pain and suffering, whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury. McGee v. A C and S, Inc., 2005-1036 (La.7/10/06), 933 So.2d 770.

Locke can no longer pursue bodybuilding or any other strenuous physical activities because of his injuries. For an athletic person, this constitutes a substantial loss of many of the activities and pleasures of life that he previously enjoyed. Due to his youth, this loss of enjoyment will 18fispan a majority of his lifetime and result in deprivation or at least curtailment of many activities that he would have ordinarily been expected to enjoy. His ability to do even simple things — like swim, drive a car on a vacation trip, or walk through an amusement park — has been severely restricted. However, we find that the trial court’s award was excessive, and we lower it to the highest amount the trial court could have awarded, or $200,000. See and compare Rivere v. Union Pacific Railroad Company, 93 1132 (La.App. 1st Cir.10/7/94), 647 So.2d 1140, writ denied, 95-0292 (La.3/24/95), 651 So.2d 295, in which a 22-year-old plaintiff, whose schooling was interrupted, received $75,000 for loss of enjoyment of life after being left with permanent partial disabilities that affected his lifestyle significantly following a truck-train collision.

CONCLUSION

While we conclude that portions of the trial court’s award for general damages were in the upper range, e.g., the elbow, we are unable to find that the trial court abused its vast discretion. As to the portions that we found were abusively high, we amend the trial court judgment in the following respects: the award of $150,000 for bulging discs is reduced to $75,000; the award of $150,000 for scarring and disfigurement is reduced to $100,000; and the award of $250,000 for enjoyment of life is reduced to $200,000. This reduction of $175,000 brings the amount of the total judgment to $3,660,352. In all other respects, the judgment is affirmed.

| ^Accordingly, the judgment of the trial court is amended and, as amended, affirmed. Costs of this appeal are assessed to RPM Pizza, LLC, d/b/a Domino’s Pizza.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . In brief, RPM Pizza stated that it does not contest the amount of costs and fees if the court determines on appeal that an assessment of costs and fees against it is appropriate.

      . Killingsworth testified that he did not in-elude this information in the report because he knew that he would be deposed. Both of his depositions were proffered at the hearing and he was questioned extensively about their contents

      . In his deposition, he also computed other possible speeds for the motorcycle which ranged from 35.7 mph to 102.7 mph. He also stated that since writing his report, he had decided that the minimum average speed of the motorcycle was 77.9 to 81.1 mph, assuming a turn calculation of 1.26 seconds.

      . Both Dr. Gleason and Dr. Holladay testified about measurements they took during their physical exams of the plaintiff. While the numbers were not identical, they clearly demonstrated that the plaintiff's right arm and thigh were smaller than the left ones.


source: Caselaw Access Project

author: BROWN, Chief Judge. MOORE, J.,

license: Public Domain

text:
    Carolyn HUBBARD as the Administratrix of the Estate of Rebecca Smith, Decedent, Plaintiff-Appellant v. NORTH MONROE MEDICAL CENTER and Dr. Hayan Orfaly, Defendants-Appellees.
    No. 42,744-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2007.

      Teresa Culpepper Carroll, Jonesboro, for Appellant.
    Ungarino & Eckert, LLC, by Brian D. Smith, Christopher C. Broughton, Shreveport, for Appellee, North Monroe Medical Center.
    Nelson, Zentner, Sartor & Snellings, LLC, by David H. Nelson, Monroe, for Appellee, Dr. Hayan Orfaly.
    Before BROWN, WILLIAMS, and MOORE, JJ.
   BROWN, Chief Judge.

bln the summer of 2003, Rebecca Smith, age 69, suffered from a plethora of medical conditions including diabetes mellitus, hypertension, dementia, and end-stage renal disease. On July 11, 2003, she was admitted to North Monroe Medical Center (“NMMC”) for the removal of an infected dialysis shunt which had been implanted in Houston. The shunt was excised and replaced with a Tessio catheter. During her stay in NMMC, Rebecca Smith developed bilateral decubitus ulcers. A central IV access port had been inserted for administering antibiotics. Rebecca Smith was discharged on August 15, 2003. The IV access port should have been removed at discharge; however, it was not. Six days later, on August 21, 2003, Ms. Smith returned to NMMC, and the access port was removed.

Carol Hubbard as administrator of Rebecca Smith’s estate filed a petition for a medical review panel on July 9, 2004. The petition contained allegations that both NMMC and Dr. Hayan Orfaly, her treating physician at NMMC, deviated from the standard of care in their treatment of Rebecca Smith.

In an opinion dated August 29, 2006, the medical review panel ruled in favor of defendants, finding that neither NMMC nor Dr. Orfaly had deviated below the applicable standard of care. Thereafter, plaintiff filed a petition in district court on December 4, 2006. NMMC filed an answer on January 11, 2007. Dr. Orfaly filed a motion for summary judgment on February 2, 2007, and NMMC filed a motion for summary judgment on February 22, 2007. Both motions urged that summary judgment was proper based upon plaintiffs failure to present any expert evidence concerning a |2breach of the standard of care. Actually, petitioner did present an affidavit from a “physician” on the date of the hearing on the summary judgment motion.

The summary judgment motions were heard on March 28, 2007. That morning plaintiff filed an opposition and an affidavit from Dr. Roderick Boyd. Noting that these filings were untimely, the trial court refused to consider them and rendered summary judgment in favor of defendants. After securing new counsel, plaintiff filed the instant appeal. After considering the late filings and, in particular, the affidavit of plaintiffs expert, we affirm the trial court’s grant of summary judgment in favor of defendants.

Discussion

Louisiana Code of Civil Procedure article 966(B) provides that affidavits and memorandum opposing summary judgment must be served pursuant to La. C.C.P. art. 1313 at least eight days prior to the hearing unless the Rules for Louisiana District Courts provide to the contrary. While observing the strict time limitation established by article 966(B), in Buggage v. Volks Constructors, 06-0175 (La.05/05/06), 928 So.2d 536, the supreme court indicated that trial courts have discretion as to whether to allow late-filed oppositions or affidavits. Specifically, the court in Bug-gage stated that affidavits not timely filed can be ruled inadmissible and that the trial court “acted within its discretion” in excluding the opposition under the facts and circumstances presented. Id. at 536.

|BThis court has ruled that trial courts have discretion to consider affidavits served after the time prescribed by La. C.C.P. art. 966(B). See Jones v. State, 42,034 (La.App. 2d Cir.04/25/07), 956 So.2d 103, unit denied, 07-1113 (La.09/14/07), 963 So.2d 1000; Debrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App. 2d Cir.04/06/05), 900 So.2d 253. See also Sa-voie v. Savoie, 03-893 (La.App. 5th Cir.12/30/03), 864 So.2d 742; Kops v. Lee, 03-1407 (La.App. 4th Cir.03/31/04), 871 So.2d 1187.

In this case, the trial court found that the time limits for opposing a summary judgment motion were mandatory and stated, “I would prefer to have more flexibility, more leeway in these matters.” It is apparent that the trial court wanted to allow the filings but believed he had no discretion.

Fundamental fairness dictates that a party opposed to a motion for summary judgment must be given a reasonable opportunity for discovery before the motion is heard. Although the medical review process had been lengthy, this action was filed in December 2006, and the summary judgment motions were filed in February and heard in March of 2007. The circumstances indicate that petitioner showed a “probable injustice” and a lack of a “fair opportunity” to present her claim. See Peters v. Hortman, 03-2597 (La.App. 1st Cir.10/29/04), 897 So.2d 131, a similar case wherein the appellate court quoted, “[T]o allow the judgment below to stand would be to permit technical pleading rules to triumph over actual justice.” Thus, we would allow the late filings in opposition to defendant’s summary judgment motions.

RHowever, we do not find that the affidavit of plaintiffs expert would warrant reversal of the trial court’s summary judgment ruling. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.07/05/94), 639 So.2d 730.

A plaintiff in a medical malpractice action must establish the applicable standard of care, a breach of this standard of care, and a causal connection between the breach and resulting injury. La. R.S. 9:2794(A); Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228; Lowrey v. Borders, 41,852 (La.App. 2d Cir.03/07/07), 954 So.2d 238. To meet this burden of proof, the plaintiff is generally required to produce expert medical testimony. Id.

In the instant case, defendants supported their motions with a certified true copy of the medical review panel report and opinion. Dr. Orfaly also submitted an affidavit in which he stated that “[Rebecca Smith’s] claim has been reviewed by a medical review panel, consisting of three physicians, who unanimously found that Appearer did not breach the standard of care in his treatment of Rebecca Smith. Appearer agrees with the panel’s finding Land further, is of the opinion that his treatment of Ms. Smith was appropriate and proper in all respects.”

The affidavit in opposition to the summary judgment motions is unenlightening. It simply states the expert’s name, Dr. Roderick Boyd, without any elaboration as to his training, experience or area of specialization. In particular, Dr. Boyd asserts only that he is a “physician” and that he reviewed Rebecca Smith’s medical records. Dr. Boyd then concludes that:

Ms. Smith developed bilateral decubitus ulcers while in the hospital — There was no documentation in the chart where this was present or prior to her hospitalization, as well as not documented upon discharge — Ms. (Smith) received decu-bitus as a result of neglect (not being moved or turned adequately) — Due to the lack of documentation upon admittance as well as discharge this is an extreme breach of care. (Emphasis added).

The opinion of the medical review panel may be considered by a court when ruling on a summary judgment motion. See Loivrey v. Borders, 41,852 (La.App. 2d Cir.03/07/07), 954 So.2d 238; Henderson v. Homer Memorial Hospital, 40,585 (La. App. 2d Cir.01/27/06), 920 So.2d 988, writ denied, 06-0491 (La.05/05/06), 927 So.2d 316.

Courts have not, in all cases, required, in addition to the medical review panel opinion, affidavits or depositions from physicians who have served on the medical review panel. See Lowrey, supra; Hinson v. Glen Oak Retirement Home, 34,281 (La. App. 2d Cir.12/15/00), 774 So.2d 1134. Nonetheless, in many instances, such affidavits or depositions have been utilized. See Robertson v. West Carroll Ambulance Service District, 39,331 (LaApp. 2d Cir.01/26/05), 892 So.2d 772.

IfiDr. Boyd’s affidavit does not address the discharge of Rebecca Smith with the central line still in place. The medical review panel found that “the patient did subsequently present to the emergency room for removal of the catheter. It was removed without incident and there were no complications. The patient suffered no injury as a result of having the line in place for an additional six days.”

The medical review panel agreed that Rebecca Smith “should have been considered to be at high risk for the development of pressure ulcers while hospitalized there” and that “[DJocumentation was poor at the hospital.” It noted, however, that a decu-bitus ulcer was first noted on her sacrum and heels on July 21, 2003, and appropriate measures were undertaken for its treatment and monitoring. In particular, Ms. Smith was protected with multipodus boots and engaged in physical and occupational therapy. The panel noted that upon discharge Ms. Smith was assessed by a home health agency. At no time did Ms. Smith’s ulcers progress to stage III. The panel concluded that the development of decubitus ulcers is not “an uncommon occurrence in high risk patients such as Ms. Smith.” The hospital protected Ms. Smith and she received proper therapy.

The affidavit of petitioner’s expert does not address the treatment received by Ms. Smith. It concludes only that the lack of thorough charting somehow proved that she was not “moved or turned adequately.” Even had the trial court allowed this affidavit, the tribunal would have reached the same conclusion: plaintiff lacks expert evidence which would establish a 17breach of the applicable standard of care. Summary judgment and the trial court’s ruling is affirmed.

Conclusion

For the reasons set forth above, the trial court’s judgment granting summary judgment in favor of defendants, North Monroe Medical Center and Dr. Hayan Orfaly, is hereby affirmed.

MOORE, J., concurs with written reasons.

MOORE, J.,

concurs.

|,I respectfully concur, but only in the majority’s ultimate decision to affirm the judgment. I would not hold that the learned district court judge abused his discretion in refusing to consider an affidavit offered long after the time limits of La. C.C.P. art. 966 B and District Court Rule 9.9(b) had expired — not filed, in fact, until the morning of the hearing on the motion for summary judgment. The proper procedure would have been for Ms. Hubbard to seek a continuance and show a “good ground therefor.” La. C.C.P. art. 1601. Because she failed to do so, the district court had no opportunity to exercise discretion, and properly refused the offering under Buggage v. Volks Constructors, 2006-0175 (La.5/5/06), 928 So.2d 586; Higginbotham v. Rapides Foundation, 07-538 (La.App. 3 Cir. 10/31/07), 968 So.2d 1226. Notably, most of the cases cited by the majority for disregarding art. 966 B and Rule 9.9(b) predate the supreme court’s pronouncement in Buggage, and the one subsequent case does not even mention it. I would not weigh the substance of Dr. Boyd’s affidavit, as the majority is constrained to do, but hold that the district court properly excluded this untimely filing and granted summary judgment under La. C.C.P. art. 967 B. I therefore concur.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Bertha HANKTON v. CITY OF NEW ORLEANS, Through PARKING CONTROL DIVISION and Lynn Simon.
    No. 2007-CA-0452.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.

      See also 821 So.2d 730.

      Joseph G. Albe, New Orleans, LA, for Plaintiff/Appellant.
    Charlene C. Larche, Deputy City Attorney, Albert Thibodeaux, Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

hPlaintiff Bertha Hankton appeals the trial court’s judgment finding no liability on the part of the defendants for her alleged injuries. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

The instant matter has an extensive history, having been considered by this court three times before. In 1999 Ms. Hankton filed a workers’ compensation claim against her employer, the City of New Orleans [hereinafter “the City”], alleging mental and physical disability suffered in the performance of her job as a supervisor in the Department of Public Works and Parking. The Office of Workers’ Compensation found that the plaintiff had sustained a work-related mental injury but not a physical injury, and awarded her temporary total disability. On appeal, this court affirmed in part and reversed in part, holding that plaintiff had not sustained any compensable injury, either mental or physical, under the facts as related in our opinion. See Hankton v. City of New Orleans, 01-0714 (LajApp.? 4 Cir. 6/19/02), 821 So.2d 730. Approximately one month after this court’s decision, Ms. Hankton, who had retired on account of her emotional/ mental disability, filed a petition for damages in civil district court against both the City and one of her former supervisors, Ms. Lynn Simon. Citing essentially the same facts upon which her workers’ compensation claim had been based, Ms. Hankton alleged in her petition that Ms. Simon had intentionally or negligently caused her emotional distress/ depression by bringing unjustified disciplinary charges against her and by suspending her without pay for one day. In addition, Ms. Hankton asserted that the City was vicariously liable for Ms. Simon’s alleged wrongful conduct.

The City filed exceptions of no cause of action and res judicata. By judgment rendered in open court July 23, 2004, the district court granted the exception of no cause of action as to the allegations of intentional conduct only, and granted the plaintiff five days to file an amended petition. The trial court denied the exception of no cause of action with regard to the allegations of negligence, and denied the exception of res judicata. This court granted the City’s writ application but denied relief, issuing written reasons. Hankton v. City of New Orleans, 04-1536 (La.App. 4 Cir. 12/1/04), 888 So.2d 1169 (unpublished). The defendants then filed a motion for summary judgment, which the district court granted, dismissing | ¡¡the suit with prejudice. On appeal, this court reversed, holding that the district court had based its decision on an invalid legal premise: that the filing of plaintiffs tort suit was precluded by the exclusivity provision of the Workers’ Compensation Act. We therefore reinstated the matter and remanded for trial on the merits. See Hankton v. City of New Orleans, 05-0799 (La.App. 4 Cir. 5/10/06), 928 So.2d 770 (unpublished).

This matter was tried on October 23-24, 2006. On February 7, 2007, the district court rendered judgment dismissing the plaintiffs claims with prejudice and assessing costs to the plaintiff. In accompanying Reasons for Judgment, the court first noted that, pursuant to the law of the case doctrine, the defendants did not have tort immunity under the Workers’ Compensation Act for the intentional and/or negligent acts alleged by the plaintiff. The court then found that the evidence was insufficient to prove that Ms. Simon had committed any intentional or negligent torts against the plaintiff. Specifically, the court noted that: the plaintiff was under Ms. Simon’s supervision for only two months; Ms. Simon was not the plaintiffs direct supervisor; the plaintiff was given a one-day suspension for making a serious mistake; the plaintiffs supervisors handled this suspension delicately and professionally; the plaintiff had serious psychological and physical problems which preexisted her suspension and which were not caused by Ms. Simon’s conduct. Finally, the court concluded that consideration of the City’s vicarious liability was pretermitted by the plaintiffs failure to prove any tortious conduct on the part of Ms. Simon.

Ms. Hankton now appeals that judgment.

LEE VIEW OF THE EVIDENCE

The plaintiffs case included documentary evidence; her own testimony; the testimony of two of her former co-workers, Joan Davis and Zepporiah Edmonds; and the deposition testimony of Dr. John Jackson. The defendants presented documentary evidence; one live witness, Lynn Simon; and transcripts of testimony of certain other City employees from the Civil Service Commission hearing on Ms. Hankton’s claim.

Ms. Hankton testified that at the time of trial, she was sixty years old and was on disability retirement as a result of stress; the last day she worked for the City was the day in June, 1998, that she was informed she was being suspended for one day for disciplinary reasons. Prior to that day, the plaintiff had worked twenty-four years for the City and had intended to retire after thirty years. After working most of her career in the Parking Division, Ms. Hankton was transferred to the Abandoned Vehicles Division in April, 1998. She testified she was transferred because of heightened news media attention given to the backlog of abandoned vehicles that were on the streets. As a field supervisor, the plaintiff was in charge of the actual stickering and requesting removal of vehicles; another supervisor, Veronica Thomas, was in charge of the office work in the division. The plaintiff supervised three people who also went into the field to place stickers on abandoned cars. Ms. Hankton testified that she was given a set of written procedures to follow when she began working in the Abandoned Vehicles Division, but she had no other training or experience. Her immediate supervisor Lwas Richard Boseman initially and later was Rhonda Thompson; as Deputy Parking Administrator, Lynn Simon was over the plaintiffs immediate supervisor. Ms. Hankton testified she was confused about the procedures but she knew not to speak up at weekly meetings because her comments were not taken seriously. She testified she requested a van to do her job because the vehicle she was assigned did not work properly and contributed to her back and leg pain, but Ms. Simon refused; as a result, Ms. Hankton was forced to ride with one of the other employees. She testified that she believed Ms. Simon was falsifying reports sent to the Mayor’s office concerning the numbers of abandoned vehicles, but Ms. Hankton admitted she had never seen one of these reports. Ms. Hankton also testified that she believed certain confidential medical information from her personnel file was improperly leaked to her co-workers. Finally, Ms. Hankton testified that the one-day suspension she was given was unjustified. Ms. Hankton was told she was being suspended because she had written an improper memo to Lashay Johnson, one of the employees under her supervision. In the memo, which was introduced into evidence, Ms. Hankton informed Ms. Johnson that she would not be compensated for having worked overtime on a particular Saturday. Ms. Hankton testified that she wrote the memo exactly as she was instructed to by Ms. Simon. Ms. Hankton further testified that Ms. Simon’s actions eventually caused her to become so stressed that she could no longer perform her job. According to Ms. Hankton, when she was told she was being suspended, she became so upset that she was never able to return to work again. She was placed on sick leave for ^^¿approximately 230 days and eventually was granted a disability retirement. She admitted that the amount of monthly compensation she received for disability retirement was greater than the amount she would have received if she had been on regular retirement.

Joan Davis, one of Ms. Hankton’s coworkers for fifteen years in the Parking Division, testified that Ms. Simon was difficult to work for. Ms. Davis stated that she also believed she was being mistreated during Ms. Simon’s administration, and as a result Ms. Davis filed an EEOC complaint in 2000 alleging discrimination by Ms. Simon and another supervisor. Another co-worker, Zepporiah Edmonds, testified that Ms. Simon once told her that she (Ms. Simon) had set up Ms. Hankton to fail. However, Ms. Davis never witnessed Ms. Simon “being ugly” to Ms. Hankton or mistreating her.

The plaintiff introduced medical records from Dr. Yvonne Osborne, a clinical psychologist who treated the plaintiff from August, 1998 until May, 1999. Dr. Osborne issued a written opinion stating that, based upon her records and the history provided by Ms. Hankton, she believed Ms. Hankton’s condition, diagnosed as Adjustment Disorder with Mixed Depression and Anxiety, was caused and/or aggravated by mental stress from her hostile work environment when she was working for the City during the period from 1996 to 1998. Dr. Osborne’s records also show that she believed Ms. Hankton was able to return to work in April, 1999. The plaintiff also introduced the deposition of Dr. John Jackson, a neuropsychiatrist who did not begin treating Ms. Hankton until June, |71999, at which point she was no longer working. At the time he was deposed in 2006, Dr. Jackson testified he was still treating Ms. Hankton for depression, seeing her once every three months. He was shown a form he had completed in 1999 indicating that Ms. Hankton’s mental condition was related to stress at work. He testified that although he had no independent recollection of that time, he believed his medical records from that time period (which records were apparently lost due to Hurricane Katrina) would support that opinion. He acknowledged, however, that subsequent medical records, which reflected his treatment of Ms. Hankton from 2002 and afterward, indicated that her continued depression was being caused by factors other than stress from her former job.

The primary witness for the City was Ms. Lynn Simon. Ms. Simon testified she served as Deputy Administrator of Parking from 1996 until 2003. She stated that no one other than the appropriate supervisors had access to Ms. Hankton’s medical records or personnel file. Ms. Simon denied that she had misrepresented the number of abandoned vehicles in her reports to the Mayor’s office. She testified that the one-day suspension imposed upon Ms. Hankton in July, 1998 was based upon Ms. Hankton’s poor performance of her job during the two months she had been assigned to the Abandoned Vehicles Division, combined with a specific incident concerning an improper memo Ms. Hankton had written to her subordinate, Lashay Johnson. Ms. Simon testified that Ms. Hank-ton had been instructed to inform Ms. Johnson that in order to be paid for overtime worked in another division, Ms. Johnson would have to obtain a copy of her time card from |sthe other division and present it to Ms. Hankton. Instead, Ms. Hankton had written a memo telling Ms. Johnson she would not be paid for the overtime. Ms. Simon testified that Ms. Hankton became agitated when she was informed of her suspension because she did not believe any discipline was warranted. Finally, Ms. Simon testified that she herself had suffered no negative consequences as a result of the discrimination complaint filed against her by Ms. Ed-monds.

The City also introduced the Civil Service Commission hearing transcript of the testimony of Richard Boseman and Rhonda Thompson. Mr. Boseman testified he was Ms. Hankton’s immediate supervisor from the time she was transferred to the Abandoned Vehicles Division until two weeks before her suspension. He stated that Ms. Hankton was transferred to Abandoned Vehicles because she had not been handling her work properly in the Parking Division. Following the transfer, Ms. Hankton attended a staff meeting at which a memo detailing the new procedures was handed out and those procedures were explained by Ms. Simon. Ms. Hankton also attended subsequent weekly meetings; Mr. Boseman testified that at these meetings, he asked Ms. Hankton if she had any problems with the new procedures, but she said she did not. Mr. Bose-man testified that the vehicle assigned to Ms. Hankton was brought in for repairs twice during this time, but that there were other vehicles made available for her to use. He also testified that he noticed problems with Ms. Hankton’s work during this time period, specifically that Ms. Hampton was not passing on the towing work orders to the other supervisor on a timely basis. Rhonda Thompson, who became Ms. Hankton’s ^immediate supervisor after Mr. Boseman, confirmed his testimony that Ms. Hankton had attended weekly staff meetings. Ms. Thompson also testified that Ms. Hampton was provided an operable vehicle at all times, and that if she was not satisfied, she was allowed to use her own personal vehicle. She further testified that Ms. Hankton had never said she had a problem with the vehicle she was assigned. Ms. Thompson stated that there was an overall problem in the Abandoned Vehicles Division and she was not sure whose fault it was; however, the “followups,” which were Ms. Hankton’s responsibility, were not being done. She finally testified that the memo Ms. Hank-ton had sent to Lashay Johnson was clearly improper, and that Ms. Hankton had acknowledged only one error in the memo, which was an error as to the date the overtime was worked.

The City also introduced medical records from two physicians who had examined Ms. Hankton and concluded that she had a preexisting major depressive disorder that was not caused by her job. In addition, the report of an orthopedist who examined Ms. Hankton in 1999 indicated that she did not have any back injury other than degenerative arthritis and that she had no physical condition that would prevent her being able to do her job.

DISCUSSION OF LAW AND FACTS

Ms. Hankton argues that the trial court committed manifest error by failing to find that the defendants’ acts or omissions constituted intentional and/or negligent torts that caused plaintiffs injuries. Considering the evidence, we find no manifest error in the trial court’s determination.

| mIntentional Tort Claim

The plaintiff contends that Ms. Simon deliberately harassed her in order to force her to quit her job. We agree with the trial court that the only intentional tort conceivably raised by the allegations of the plaintiffs petition is that of intentional infliction of emotional distress. To recover for intentional infliction of emotional distress, the plaintiff must show that the conduct of the defendant was extreme and outrageous, that the emotional distress suffered by the plaintiff was severe, and that the defendant desired to inflict severe emotional distress or knew that such was substantially certain to result from his conduct. Succession of Harvey v. Dietzen, 97-2815, p. 8 (La.App. 4 Cir. 6/24/98), 716 So.2d 911, 916 (citing White v. Monsanto Co., 585 So.2d 1205 (La.1991)). Considering the evidence presented, we agree with the trial court that the plaintiff failed to prove that Ms. Simon’s conduct was extreme or that Ms. Simon intended to cause Ms. Hankton severe emotional distress.

Although there was testimony that Ms. Simon was difficult to work for, there was no evidence of any specific conduct that could be considered extreme or outrageous. Ms. Edmonds, the one witness who testified that Ms. Simon had revealed her intention to cause Ms. Hankton to fail, admitted that she had never seen or heard Ms. Simon actually mistreat Ms. Hankton. Moreover, Ms. Simon testified that Ms. Hankton’s one-day suspension was primarily based upon Ms. Hankton’s failure to follow instructions with regard to the memo she wrote to Ms. Johnson. Ms. Hankton’s only explanation, that she wrote exactly what she was |ntold to write, is implausible in light of the text of the memo, which was placed in evidence. Moreover, the length of the suspension, which was the minimum possible amount of time, does not appear to be unreasonable in light of the infraction. Finally, there was no evidence that Ms. Simon screamed, yelled, berated Ms. Hankton, or behaved in an unprofessional manner when she informed Ms. Hankton of her suspension. Therefore, we do not find the trial court’s determination that no intentional tort was committed to be unreasonable considering the evidence.

Negligence Claim

Plaintiffs claim that her mental condition was caused by Ms. Simon’s negligence must be determined pursuant to a duty-risk analysis. To show liability on the part of the defendant, the plaintiff must prove four elements: (1) the defendant owed a duty to the plaintiff; (2) the requisite duty was breached by the defendant; (3) the defendant’s conduct was a cause-in-fact of the resulting harm; and (4) the risk of harm was within the scope of protection afforded by the duty breached. LeJeune v. Union Pacific Railroad, 97-1843, p. 6 (La.4/14/98), 712 So.2d 491, 494.

Although Ms. Simon clearly had a duty to treat the plaintiff fairly, we agree with the trial court that the evidence does not support the plaintiffs contention that this duty was breached. The evidence fails to establish any specific incident in which Ms. Simon’s treatment of Ms. Hankton was unfair, unreasonable or unprofessional. Moreover, although plaintiff clearly suffers from a mental | ^.disability, there is competent medical evidence indicating that her mental problems preexisted and contributed to her inability to perform her job satisfactorily. Therefore, we do not find the trial court’s conclusion that plaintiff failed to prove her negligence claim to be unreasonable based upon the record.

CONCLUSION

Because we find no manifest error in the trial court’s dismissal of the plaintiffs claims against Ms. Simon, the plaintiffs claim of vicarious liability on the part of the City is moot. Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

      .This court affirmed the finding of no com-pensable physical injury based upon the lack of medical evidence and the absence of any trauma. We also concluded the claimant had not sustained a compensable mental injury because she had failed to prove that her depression was the result of "sudden, unexpected and extraordinary stress.”

      . The plaintiff timely filed an amended petition.

      . Relying on O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124, this court found that because Ms. Hankton had alleged a type of mental disability that fell outside the ambit of workers' compensation coverage, she must be allowed to pursue her tort claims in civil court.


author: EDWIN A. LOMBARD, Judge.

text:
    Margie ROSALES, Hector Rosales Individually and on Behalf of Savanna Ponce v. Dr. James LOYOLA and St. Paul Fire & Marine Insurance Company.
    No. 2007-CA-0517.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.

      Christopher J. Bruno, Bruno & Bruno, New Orleans, LA, for Plaintiff/Appellee.
    Peter E. Sperling, John B. Cazale V, FRILOT, LC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   EDWIN A. LOMBARD, Judge.

| plaintiff, Margie Rosales (“Mrs. Rosales”), sued Defendant, Dr. James Loyola (“Dr. Loyola”) and his malpractice insurer, St. Paul Fire & Marine Insurance Company (“St. Paul”), alleging that Dr. Loyola’s negligent removal of her wisdom teeth, sometimes hereinafter referred to as “third molars,” either caused her to develop, or exacerbated an existing, temporo-mandibular joint (TMJ) disc displacement. Mrs. Rosales further alleged that Dr. Loyola did not obtain her informed consent to perform the surgery. After a bench trial, Dr. Loyola was found liable to Mrs. Rosales for damages in the amount of $45,000. Dr. Loyola and St. Paul appealed the trial court’s judgment. After a review of the record in light of the relevant law, we affirm.

Relevant Facts:

Mrs. Rosales was referred to Dr. Loyola, an oral surgeon, by her dentist, for the removal of tooth #32, her lower right wisdom tooth, which had been causing her pain. X-rays were taken at Dr. Loyola’s office on December 19, 1999 and Mrs. Rosales was informed that teeth numbers 1 (the upper right third molar), 17 (the lower left third molar), and 32 (the lower right third molar) were impacted and would have to be removed. On | ^December 30, 1999, Mrs. Rosales came to Dr. Loyola’s office for the extraction of the teeth. According to Dr. Loyola, prior to the procedure, he explained the risks associated with the procedure to Mrs. Rosales and a consent form was presented to Mrs. Rosales for her review and signature. Dr. Loyola claims he later performed the procedure, which he claims lasted thirty-five minutes, without complication.

Mrs. Rosales remembers the events surrounding the extraction much differently. She insists that Dr. Loyola never spoke to her about the details of the surgery nor informed her of the risk of developing or exacerbating a TMJ disc displacement, or any other condition, as a result of the extraction. She further insists that Dr. Loyola never presented her with a written consent form for her review and signature. She further denies ever giving her oral consent to the surgery and insists that she was never informed of any less-invasive alternative treatments or courses of action. Mrs. Rosales testified that the first time she ever met Dr. Loyola was when he walked in to perform the procedure. By her account, based upon the time she went into surgery and the time she came out, the surgery took two hours and thirteen minutes to complete. Mrs. Rosales’ brother, who accompanied her to the surgery, testified that Dr. Loyola came out to speak with him during the procedure and told him that a complication in the surgery was causing a delay.

Mrs. Rosales claims that she suffered immediate pain and pressure to her jaw upon Dr. Loyola placing the bite block in her mouth. Although she allegedly brought this to Dr. Loyola’s attention, she claims that he failed to reposition the bite block. According to Mrs. Rosales, immediately after the procedure, she began experiencing pain in her jaw and ringing in her ears. A |3few days later, her jaw began clicking when opening. Mrs. Rosales telephoned Dr. Loyola when she began to experience severe pain and nausea. In response, Dr. Loyola prescribed more pain medication.

Mrs. Rosales did not return for her scheduled follow-up procedure and did not seek further treatment from Dr. Loyola when her TMJ symptoms appeared. Eight months after the extraction, she sought treatment from other health care providers for TMJ dysfunction she alleges was initiated as a result of the extraction procedure performed by Dr. Loyola. Eventually, the clicking and popping in her jaw became so bothersome that Mrs. Rosales underwent surgery in an effort to relieve the TMJ dysfunction. Nevertheless, Mrs. Rosales claims that, to this day, she is still suffering from pain and discomfort as a result of the extraction.

Mrs. Rosales filed a complaint with the Louisiana Compensation Fund alleging medical negligence against Dr. Loyola. She specifically alleged that Dr. Loyola breached the standard of care by failing to discuss the risks associated with the extraction of her teeth, failing to present Mrs. Rosales with a written consent form, and failing to properly perform the extraction procedure. The medical review panel, which was composed of Drs. Louis Genard, Craig Brandner and Anthony Indovina, found that the evidence did not support the conclusion that Dr. Loyola failed to meet the standard of care as it related to the performance of the surgical procedure. However, the panel did find that a material issue of fact existed as it related to obtaining proper informed consent since Dr. Loyola was unable to produce the alleged written consent form for the panel’s review.

On December 10, 2001, Mrs. Rosales and her husband brought suit against Dr. Loyola and his insurer for medical malpractice. At trial, Mrs. 1 ¿Rosales alleged that her temporomandibular joint was hyper-extended by Dr. Loyola during the extraction of her lower, right wisdom tooth, resulting in an anterior disc displacement. She argued that a hyperextension injury to the TMJ and/or anterior disc displacement are material risks associated with a third molar extraction, therefore, such risks should have been disclosed to her by Dr. Loyola prior to the extraction. In the alternative, she alleged that her TMJ dysfunction pre-existed the extraction and was asymptomatic and that aggravation of a preexisting asymptomatic TMJ condition is a material risk that should have been disclosed by Dr. Loyola prior to the extraction.

After a bench trial, Dr. Loyola was found liable to Mrs. Rosales. In its reasons for judgment, the trial court stated that Dr. Loyola breached the standard of care by failing to obtain Mrs. Rosales’ informed consent. The court also found that Dr. Loyola breached the standard of care by failing to prepare an operative report, which would have documented what he did during the surgery. The trial court awarded Mrs. Rosales $45,000 in damages. Defendants then filed the instant appeal.

Assignments of Error:

Defendants argue that the trial court abused its discretion in:

1. Finding that Dr. Loyola’s failure to prepare an operative report was a breach of the standard of care;
2. Finding that Dr. Loyola’s failure to present a written consent form to Mrs. Rosales was a breach of the standard of care; and
3. Failing to address causation between any act or omission on the part of Dr. Loyola and plaintiffs alleged damages.

Law and Analysis

Informed Consent

|RThe standard of review for factual determinations is one of manifest error. Brandt v. Engle, 00-3416 (La.06/29/01), 791 So.2d 614. Thus, for reversal, an appellate court must find that a reasonable factual basis does not exist for the finding and that the finding was clearly wrong. Id. In reviewing a 'fact finder’s determination that a doctor failed to obtain the patient’s informed consent, the appellate court should focus on the duty of the doctor to provide material information to the patient under the circumstances of the particular case, and view the evidence in the light most favorable to the party who prevailed before the trier-of-fact. Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701 So.2d 447. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978).

Louisiana Revised Statute § 40:1299.131 sets out the requirements of informed consent by dentists and oral surgeons. According to this statute, the patient must be informed in general terms of the nature and purpose of the dental treatment and the possible associated risks, and must have an opportunity to ask questions regarding the procedure and have the questions answered in a satisfactory manner. La.Rev.Stat. 40:1299.131. The patient’s subsequent consent to the treatment may be verbal, provided that it meets the established criteria. See La.Rev.Stat. 40:1299.131(F).

In a case, such as this one, where the plaintiff alleges that she underwent a dental treatment without her informed consent, the plaintiff has the burden of proving: (1) The existence of a material risk unknown to the [fipatient; (2) The failure of the oral surgeon to disclose that risk; (3) That the disclosure of the risk would have led a reasonable patient in the plaintiffs position to reject the medical procedure or choose a different course of treatment; and (4) Injury. Hondroulis v. Schuhmacher, 553 So.2d 398, 404, n. 35 (La.1988). In a case where the plaintiff alleges there has been no consent, the law requires only proof of a material risk that was not disclosed and the occurrence of that risk. LaCaze v. Collier, 434 So.2d 1039,1040, n. 1 (La.6/17/83).

In this case, the oral surgeons who testified on behalf of Dr. Loyola stated that a hyperextension of the TMJ and/or anterior disc displacement is a very remote risk associated with a third molar extraction. Generally, a risk is material when a reasonable person in what the doctor knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy. Hondroulis, supra, at 411^12, citing, LaCaze v. Collier, supra, at 1045-46. A rare or unforeseeable risk of medical treatment need not be disclosed to a patient unless a risk is medically known and of a magnitude that would be material in a reasonable patient’s decision to undergo treatment. Id., at 413.

In this case, Defendants have conceded that an aggravation of a preexisting, asymptomatic TMJ dysfunction, whereby that condition becomes symptomatic, is a material risk associated with a third molar extraction. Although the standard 1999 consent form customarily used by Dr. Loyola at the time of Mrs. Rosales’ surgery did list Trismus (jaw pain and difficulty opening the mouth) as a risk that could occur as a result of the extraction, Dr. Loyola claimed that the signed consent form was misplaced |7by his office staff and he could not locate it; hence, he did not produce the alleged signed consent form at the Medical Review Board hearing or at trial. As previously stated, Mrs. Rosales emphatically denies that Dr. Loyola ever presented her with a written consent form or discussed with her the risks and possible complications of the extraction and therefore, did not have her informed consent to perform the extraction.

In the absence of valid written consent, the patient claiming lack of informed consent must prove that a known risk of the procedure was not disclosed, that the undisclosed risk actually occurred, and that a reasonable patient would have withheld his consent if advised of the specific risk. Wright v. Hirsch, 572 So.2d 783, 788 (La.App. 4 Cir.1990). Although the patient has the absolute right, for whatever reason, to prevent unauthorized intrusions and treatments, he or she can only recover damages for those intrusions in which consent would have been reasonably withheld if the patient had been adequately informed. LaCaze, supra, at 1049.

Defendants argue that a reasonable person would not have withheld her consent for the removal of the molars just because there was a remote chance that TMJ could develop or worsen. They claim that Mrs. Rosales had to have her third molar # 32 removed due to its decayed state and the increasing and constant pain she was experiencing in the tooth, and that the only alternative to the extraction would have been to leave the rotten tooth in place, which could have been life-threatening if the infection had worsened. Defendants argue that, based on these facts, it is unlikely that a reasonable person experiencing severe and constant pain in her tooth would have refused to undergo the extraction having been informed of the material risk of a possible development or exacerbation of a pre-existing TMJ | ^dysfunction.

On the other hand, Mrs. Rosales argues that a reasonable person may have refused the extraction, had he or she been specifically advised of the material risk of exacerbating an existing non-symptomatic TMJ condition. Although molar #32 was infected, molars # 1 and # 17 were merely impacted, and were not causing Mrs. Rosales any pain or discomfort. She claims that, nevertheless, Dr. Loyola failed to advise her of any alternative courses of treatment. Mrs. Rosales argues that had she known of the risk of developing or exacerbating a TMJ dysfunction, she would have opted for an alternative course of treatment, such as taking antibiotics to treat the infection, had that option been presented to her before the surgery. The trial court clearly accepted and found reasonable Mrs. Rosales’ testimony that had she been told of the material risks of the procedure, she would not have undergone the extraction of the molars.

Dr. Loyola testified that Mrs. Rosales consented in writing to the procedure while Mrs. Rosales denies that she consented, either in writing or verbally. After hearing the testimony of both parties, the trial court found that Dr. Loyola did not have Mrs. Rosales’ informed consent to perform the surgery. Apparently, the trial court found Mrs. Rosales’ testimony to be more credible than the unsupported self-serving testimony of Dr. Loyola that he discussed the treatment options and possible risks of the extraction with Mrs. Rosales. An appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Dawes v. Kinnett, 99-3158 (La. App. 4 Cir. 1/17/01), 779 So.2d 978, 984. |flHere, the trial court observed the witnesses, heard their testimony, weighed the evidence before it, and concluded that Dr. Loyola failed to inform Mrs. Rosales of the risks involved in undergoing the extraction of her third molars, that Mrs. Rosales did indeed develop or exacerbate a TMJ dysfunction, and that she would not have undergone the surgery had she known that the unknown risk could occur. Because there is factual support for the trial court’s findings in the record, we cannot say that the trial court’s finding that Dr. Loyola breached the standard of care by failing to obtain Mrs. Rosales’ informed consent was clearly wrong.

Medical Malpractice

The trial court also found that Dr. Loyola committed medical malpractice, negligently breaching the standard of care of an oral surgeon, by failing to prepare an operative report. To prove medical malpractice a plaintiff must prove the prevailing standard of care, the health care provider’s violation of that standard of care, and the causal connection between the health care provider’s alleged negligence and the plaintiffs claimed injuries. Pfiff-ner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228; La.Rev.Stat. 9:2794. The standard of care is generally that degree of knowledge or skill possessed or the degree of care ordinarily exercised by doctors licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances. La.Rev.Stat. 9:2794 A(l).

While much of the medical evidence on this issue was in Dr. Loyola’s favor, Mrs. Rosales also presented medical evidence that Dr. Loyola’s surgical technique fell below the standard of care and that this negligence resulted in either the development or exacerbation of an existing TMJ | ^dysfunction. Mrs. Rosales specifically testified that Dr. Loyola used excessive force in removing molar # 32, thereby hyper-extending the TMJ, resulting in an anterior disc displacement. Although Dr. Brandner and Dr. Indovina testified that they could not say that the technique employed by Dr. Loyola in the removal of Mrs. Rosales’ third molars was improper or that any action or inaction by Dr. Loyola caused or exacerbated Mrs. Rosales’ TMJ disc displacement, Dr. Indovina did testify that a bite-block should not hurt a patient’s jaw and it is possible that a bite-block can stretch a patient’s jaw beyond its normal range of motion. Dr. Indovina further testified that TMJ displacement is best prevented by allowing the patient to bite on a prop and rest every few minutes if the procedure is prolonged, because the longer the procedure, the more likely a problem will develop. Additionally, Mrs. Rosales’ treating physician, Dr. Pulliam, opined that Mrs. Rosales’ temporomandib-ular joint was hyper-extended by Dr. Loyola during the extraction of her lower, right wisdom tooth resulting in an anterior disc displacement. Further, Dr. Indovina testified that Mrs. Rosales’ MRI results were consistent with a finding of the hy-perextension of her mandible.

The trial court found that Dr. Loyola’s failure to prepare an operative report, in- and-of-itself, breached the applicable standard of care. Dr. Loyola’s failure to prepare an operative report, which would have documented exactly what he did during the surgery, does make it difficult to determine whether his surgical performance met the standard of care or whether any of the actions taken by Dr. Loyola resulted in Mrs. Rosales’ injuries. However, there is medical evidence in the record to support the trial court’s finding that Mrs. Rosales’ temporomandibular joint was hyper-extended during the extraction and that she suffered injury to the joint as a Inresult. Keeping in mind the standard for appellate review of manifest error, after reviewing the evidence in the record, we find no error in the trial court’s finding regarding the negligence and fault of Dr. Loyola.

Accordingly, because the evidence produced at trial was enough to form a factual basis for the trial court’s finding that Dr. Loyola failed to obtain Mrs. Rosales’ informed consent to the extraction and that he breached the applicable standard of care, the judgment of the trial court is affirmed.

AFFIRMED.