text:
    Ann EDWARDS, Individually and on behalf of her Son, Robert Edwards, Decedent, Plaintiff-Appellant. v. Dr. William C. ALEXANDER, Dr. James M. Belue, and Dr. Robert M. Raulerson, Defendants-Appellees.
    No. 42,000-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 2007.

      Delbert Gene Talley, for Appellant, Ann Edwards, Individually and on Behalf of Her Son Robert Edwards, Decedent.
    Mayer, Smith & Roberts, L.L.P. by David F. Butterfield, for Appellee Dr. William C. Alexander.
    Hayes, Harkey, Smith & Cascio by Bruce McKamy Mintz, for Appellee Dr. James Michael Belue.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P. by Lawrence Wayne Pettiette, Jr., Joseph S. Woodley, for Appellee Louisiana Patients’ Compensation Fund.
    Before STEWART, GASKINS and DREW, JJ.
   DREW, J.

|TIn this medical malpractice action, we affirm the judgment granting the peremptory exception of prescription and dismissing plaintiffs claims.

FACTS

At approximately 7:20 on the evening of March 1, 1999, Robert Edwards presented to the emergency room (“ER”) at Lincoln General Hospital. Edwards gave a history of diarrhea, vomiting for two days, increasing shortness of breath for two months, lethargy, and having passed out for a few seconds that day. His blood pressure was low and a pulse reading showed that he had tachycardia, or a rapid heart beat. He also had mild tachypnea, or rapid res-pirations. A pulse oximeter reading showed that he was slightly hypoxic, which meant he did not have a normal amount of oxygen in his blood. It was also recorded that Edwards had a fever. Edwards did not report having chest pain.

Edwards was examined by Dr. James Michael Belue, the double-coverage doctor in the ER that evening. His diagnosis was gastroenteritis. Dr. Belue prescribed Lor-tab and Motrin. Because Dr. Belue felt that Edwards’s condition was stable, he gave orders for Edwards to be discharged. Dr. Belue’s discharge instructions were to stop using marijuana, not to drink anything for six hours and then start with clear liquids, and to return to the ER if there were any further problems. Dr. Belue’s shift ended at 10:45 p.m.

At 11:35 p.m., while Edwards was in the ER waiting room preparing to be discharged by the nurse, Edwards had what appeared to be a seizure. filíe was returned to an ER examination room, where he was treated by Dr. William Alexander, the primary ER doctor. An arterial blood gas test (“ABG”) was ordered, and it showed that Edwards’s levels of p02 and pC02 were abnormally low. Dr. Alexander thought that Edwards had a hypoxic seizure, which he attributed to dehydration, so he ordered that Edwards receive IV fluids. Dr. Alexander agreed with Dr. Belue’s earlier diagnosis of gastroenteritis and did not repeat the ABG. Edwards was discharged at approximately 2:10 a.m., and Dr. Alexander did not add anything to Dr. Belue’s discharge instructions.

Dr. Alexander did not write any notes in the ER record, and the abnormal ABG results were not in the ER record when Edwards returned to the ER at approximately 3:40 p.m. on March 4. While Edwards was in the triage section, he had what the nurses thought was a seizure. Dr. Robert Raulerson, the ER doctor on duty, examined Edwards, who was sitting in a wheelchair and was not completely responsive. Dr. Raulerson observed Edwards have a tonic seizure that lasted approximately 20 seconds and during which Edwards had urinary incontinence, and which was followed by a very brief post-ictal state of confusion. Dr. Raulerson described the seizure he witnessed as being fairly subtle.

Edwards told Dr. Raulerson that he had been having “spells” during the last several days, and during these episodes he would lose consciousness and sometimes shake. Dr. Raulerson reviewed the ER records from | ^Edwards’s earlier visit, prescribed Valium, and diagnosed Edwards as having a possible new-onset seizure disorder.

Dr. Raulerson then referred the case to Dr. Belue, who became Edwards’s attending physician. Dr. Belue admitted Edwards to the ICU and ordered a CBC, urinalysis, drug screen, thyroid panel, and monitoring of his vital signs. Dr. Belue asked Dr. Michael Ehrlich, a neurologist, to consult on the case, and he asked the ICU nurses to call him or Dr. Ehrlich if Edwards exhibited any seizure activity.

Despite, being hospitalized, Edwards died on the afternoon of March 5 of a saddle pulmonary embolus, which was described as a blood clot that breaks free and occludes the pulmonary artery.

Legal Proceedings

On February 18, 2000, Mrs. Edwards filed a petition for a medical review panel against Drs. Belue and Raulerson. She amended her petition on June 20, 2000, to add Dr. Ehrlich as a defendant. On September 26, 2001, Mrs. Edwards amended her petition to add Dr. Alexander as a defendant.

The panel ruled that the evidence did not support the conclusion that Dr. Belue, Dr. Ehrlich, or Dr. Raulerson failed to meet the applicable standard of care. The panel determined that the evidence supported the conclusion that Dr. Alexander failed to meet the applicable standard of Reare. However, the panel also found that this breach by Dr. Alexander was not a factor in Edwards’s damages and did not affect the ultimate outcome of his case.

On July 19, 2002, Ann Edwards (“Mrs. Edwards”), individually and on behalf of her son, filed a suit for wrongful death against Drs. William Alexander, James Be-lue, and Robert Raulerson. On April 12, 2005, Dr. Alexander amended his answer to set forth a defense of prescription.

Following a trial on the merits, the jury returned a verdict finding that Dr. Alexander was negligent in his diagnosis and treatment of Edwards, and that the negligence caused or contributed to his death. The jury assigned 70% of fault to Dr. Alexander and 30% of fault to Edwards. Damages of $262,500 were awarded, subject to a 30% reduction. Dr.'Belue was not found negligent in his diagnosis and treatment of Edwards. Costs were allocated along the same ratio as the finding of fault. Following the verdict, Dr. Alexander urged the exception of prescription. The Patients’ Compensation Fund (“PCF”) also urged the exception after intervening in the suit.

On November 15, 2005, the trial court sustained the exception of prescription. The trial court noted in its ruling that Mrs. Edwards was placed on notice of Dr. Alexander’s possible involvement from Dr. Alexander’s name appearing approximately six times on documents ^provided during discovery. Thus, Mrs. Edwards had in her possession information from which further inquiry should have been made.

On February 27, 2006, the court entered a judgment in accordance with the jury’s verdict. However, in a judgment rendered on March 9, 2006, the court ruled that the February judgment was superseded by the court’s granting of the exception of prescription. Accordingly, all claims were dismissed against Drs. Alexander and Be-lue, with costs assessed against Mrs. Edwards.

Mrs. Edwards appealed, arguing that: (i) the jury erred in not finding Dr. Belue liable; (ii) the trial court judge erred in granting the exception of prescription; (iii) the jury erred in allocating 30% of fault to Edwards; (iv) the trial judge erred in allowing Dr. Raulerson to testify as an expert; (v) the trial judge erred in taxing 30% of costs to Mrs. Edwards in the February 2006 judgment; and (vi) the damages award was abusively low. Dr. Alexander has answered the appeal seeking a reduction in damages and the amount of fault allocated to him.

DISCUSSION

I. Negligence of Dr. Belue

It has been alleged by Mrs. Edwards that Dr. Belue was negligent during the March 1 ER visit as well as during the March 4-5 ER visit and admission to the ICU. In a medical malpractice action, the plaintiff has the burden of proving the applicable standard of care, the breach of the standard of care, and the causal connection between the breach and the resulting injuries. La. R.S. 9:2794(A); Robertson v. West Carroll Ambulance Service District, 39,331 (La.App.2d Cir.1/26/05), 892 So.2d 772, writ denied, 2005-0460 (La.4/22/05), 899 So.2d 577.

Visit to Emergency Room on March 1

Dr. David Schreck, who testified by deposition on behalf of Mrs. Edwards, is board-certified in emergency medicine and internal medicine. Dr. Schreck conceded that Edwards possibly had concomitant gastroenteritis when he presented to the ER on March 1.

Dr. Schreck opined that Dr. Belue breached the standard of care when he failed to diagnose the pulmonary embolism on March 1, perform a more thorough workup by ordering tests to confirm or exclude it, or at the very least when he failed to admit Edwards into the hospital. Dr. Schreck thought that Dr. Belue should have admitted Edwards because he was an obese smoker who had vascular instability, an abnormal chest X-ray, an abnormal EKG, complaints of shortness of breath, history of syncope, and was hypoxic. It was noted by Dr. Schreck that obesity and smoking are risk factors for a pulmonary embolus. Dr. Schreck felt that Dr. Belue would have met the standard of care on March 1 by ordering an ABG test and a spiral CT or a VQ scan.

Dr. Frederick Carlton testified on behalf of Dr. Belue as an expert in emergency medicine. It was Dr. Carlton’s opinion that Dr. Belue met the standard of care of an emergency physician. Diarrhea, nausea, and vomiting are not symptoms that Dr. Carlton would associate with a pulmonary embolus. Those three symptoms, along with fever, were consistent with Dr. |7Belue’s diagnosis of gastroenteritis. Dr. Carlton noted that morbid obesity was the only risk factor for pulmonary embolus that Edwards exhibited.

Dr. Donald Givler, a member of the panel, testified as an expert in family medicine. Dr. Givler opined that Dr. Belue’s diagnosis of gastroenteritis was supported by the medical chart, and he felt that there was no evidence that Edwards was unstable when Dr. Belue discharged him. Dr. Givler opined that none of Edwards’s vital signs or Dr. Belue’s findings, taken alone or in combination, showed a level of instability preventing a discharge.

Dr. Belue is a board-certified family practice physician. Dr. Belue tested Edwards’s orthostatic blood pressure, and ordered an EKG, chest X-ray, CBC, chemistry profile, and drug screen. The chest X-ray was ordered by Dr. Belue because he was concerned about Edwards’s complaints of having shortness of breath for two months.

Dr. Belue noted that tachycardia could cause shortness of breath, but he regarded tachycardia as a nonspecific finding. Dr. Belue did not consider pulmonary embolism in his differential diagnosis because shortness of breath associated with that condition is usually acute in onset. Instead, he considered another pulmonary condition, sarcoidosis, although he gave it a very low chance of occurring. Dr. Belue explained that sarcoidosis can cause chronic shortness of breath.

The chest X-ray was interpreted by Dr. Belue as showing some prominence in the hilum bilaterally without definite evidence of sarcoidosis, 1 salthough he kept that condition in the differential diagnosis. Dr. Belue found that the chest X-ray was nonspecific. The radiologist, Dr. Robert Francis, wrote in his report on March 2, “Prominent hilar structures bilaterally which appear all vascular.” Dr. Francis’s impression was cardiac enlargement and prominence of the central pulmonary vessels.

Dr. Schreck found it significant that the chest X-ray showed prominence in the hi-lum bilaterally. He also thought it was significant that Dr. Belue wrote that there was no definite evidence of sarcoidosis, which is a disease of the lymph nodes and not the blood vessels. Dr. Schreck noted that prominence of central pulmonary vessels, the impression of the radiologist, is a finding associated with pulmonary embolism.- However, the radiologist’s report was not available to Dr. Belue when he left the ER on March 1.

It was admitted. by Dr. Schreck that Edwards’s weight could have contributed to his shortness of breath. Dr. Schreck believed that the shortness of breath complaint should have been addressed in Dr. Belue’s ER report.

Dr.- Carlton pointed out that although shortness of breath is generally a concern, shortness of breath for two months is not a complaint normally associated with a pulmonary embolus, as that is an: acute event. Thus, Dr. Belue would have looked for a chronic pulmonary disease, such as sarcoi-dosis, to explain the shortness of breath. When asked if it was possible that Edwards had a recurrent pulmonary embolism condition in |9which he had a pulmonary embolus, it resolved over a month, then he had another pulmonary embolus, Dr. Carlton responded that that was unlikely.

Dr. Carlton testified that a person as overweight as Edwards sometimes has restrictive lung disease, which could cause chronic shortness of breath. Dr. Carlton added that he was comfortable in saying that anyone 100 pounds overweight almost certainly has an element of restrictive lung disease not apparent on X-ray. This condition prevents the lungs from fully expanding because they are inhibited by the chest wall. Dr. Givler thought that the shortness of breath could have been related to Edwards’s weight.

Dr. Carlton noted from the chest X-ray report that the X-ray was abnormal, but thought it was a nonspecific read. Dr. Carlton also noted from this report that the heart was enlarged and the central pulmonary vessels were prominent, but he thought it was hard to know what to make of it without comparing it with prior X-rays. Nevertheless, Dr. Carlton felt there was nothing from the report which would have suggested that Edwards had a pulmonary embolus. Dr. Carlton also noted that elevated right side pressure from morbid obesity could have caused some of the X-ray findings.

The EKG was ordered by Dr. Belue because he wanted to confirm that Edwards had sinus tachycardia, which he thought was most likely caused by Edwards’s obesity and fever. The EKG showed T-wave abnormalities, which Dr. Belue regarded as a nonspecific finding. Cardiologist Dr. William Smith read the EKG as showing sinus tachycardia and T-wave inversion, but could not exclude ischemia. Dr. Smith’s report |1flwas not ready until March 2, so Dr. Belue obviously did not have it when he treated Edwards on March 1.

Dr. Schreck thought this .EKG was markedly abnormal and should have led a doctor to consider the diagnosis of pulmonary embolism for an obese smoker who was short of breath and complained of passing out. He contended that these EKG results were alone enough to admit Edwards into the hospital. Dr. Schreck recognized a S1X3T3 pattern on the cardiogram that is consistent with pulmonary embolism patients, although it is not specific for pulmonary embolism. In his EKG report, Dr. Smith did not mention the pattern observed by Dr. Schreck. Dr. Givler disagreed that Edwards’s T-wave abnormalities were suggestive of a pulmonary embolism.

Although Dr. Carlton recognized that the EKG showed abnormalities, he considered these to be nonspecific T-wave changes, and without looking at a prior EKG to use as a baseline, he felt that Dr. Belue would not have known if that was normal for Edwards. Dr. Carlton stated that an ER doctor would not be required to admit an ER patient with that EKG reading without cardiac complaints. Dr. Carlton regarded an EKG as a very poor diagnostic tool for a pulmonary embolus.

The vital signs by Edwards on March 1 were not alarming to Dr. Belue, who did not consider the orthostatic blood pressure testing to be clinically significant. Dr. Be-lue did not think the oxygen saturation of 93% on the pulse oximeter was so abnormally low as to require admission as he did not consider this level to be significant in the context of Edwards’s case.

InDr. Schreck found it significant that Edwards had reported passing out, although that could have been caused by dehydration. Dr. Schreck also thought the tachycardia was a significant finding by Dr. Belue.

Dr. Givler explained that Edwards’s low blood pressure and elevated pulse during the first ER visit, as well as his reported passing out at home, could have been caused by dehydration related to the gastroenteritis. Dr. Givler felt that Edwards’s low pulse oximeter reading could have been caused by the shortness of breath, and his fever could have been caused by the gastroenteritis.

Regarding the vital signs when Edwards was treated by Dr. Belue on March 1, Dr. Carlton found the blood pressure to be a little low, which could have been connected to dehydration. Dr. Carlton stated that the tachycardia is a nonspecific finding that is commonly caused by dehydration. Dr. Carlton noted that fever could raise the pulse and respiratory rates. Dr. Carlton also stated that the pulse rate is a better indication of dehydration than blood pressure is. Dr. Carlton thought that the orthostatic vital signs were indeterminate.

Dr. Carlton did not find the pulse oxime-ter reading of 93% to be terribly alarming for someone who presented with Edwards’s history. He would have been more concerned with that reading if Edwards had a sudden onset of shortness of breath. Dr. Carlton testified that if the primary issue had been the pulmonary complaint, not syncope and digestive problems, then he would have preferred that Dr. Belue repeat the pulse oxygen test before discharging the patient. Dr. Carlton agreed that the 93% reading |12could not be attributed to the gastroenteritis, but he thought that it could have been a normal reading for Edwards considering his weight.

The chemistry profile ordered by Dr. Belue showed a marginally low carbon dioxide level, which could have been caused by the diarrhea, and which Dr. Belue felt was insignificant based upon Edwards’s clinical presentation. The CBC showed high levels of hemoglobin and hematocrit. Dr. Belue thought these possibly suggested dehydration, although he did not think Edwards was so dehydrated that he needed to administer fluids or that it would be dangerous to discharge him. If Edwards had been severely dehydrated, Dr. Belue would have ordered IV fluids.

Dr. Schreck opined that Edwards’s abnormal hemoglobin level on March 1 was significant because it is a response to chronic hypoxia, although he recognized that high hemoglobin levels are sometimes seen in obese patients.

Dr. Carlton explained that the elevated hemoglobin and hematocrit levels could have been caused by dehydration, as well as by stress polycythemia. Dr. Carlton added that a slightly elevated hemoglobin level could be a sign of moderate dehydration. Although the blood chemistry profile showed that the carbon dioxide level was slightly low, Dr. Carlton thought this was caused by the diarrhea, and the body can compensate ■ for this by speeding'up the breathing rate.

In light of the history given by Edwards in the emergency room on March 1, Dr. Carlton could not find anything in the results of the tests ordered by Dr. Belue that should have suggested to Dr. Belue that Edwards 113had a pulmonary embolus or that he should do a more thorough workup. Even in hindsight, Dr. Carlton could not think of anything in the lab results that would make him suspect a pulmonary embolus. Dr. Carlton believed that based upon the complaints and test results, Edwards was stable when Dr. Be-lue discharged him, and the diagnosis of gastroenteritis was proper.

Visit to Emergency Room on March 4 and Subsequent ICU Admission

Dr. Belue admitted Edwards to the ICU because he thought it would be important to monitor Edwards in that setting in light of his lack of seizure history. He then consulted with Dr. Ehrlich, a neurologist. The nursing records from March 4 reflect that the ICU nurses reported seizure activity lasting approximately 15 seconds at 6:35 p.m., 8:30 p.m., and 9:00 p.m. Two more seizures, one of which was a petit mal seizure, were reported between midnight and 1:00 a.m. These seizures occurred despite Edwards receiving Dilantin.

Dr. Belue did not see the ABG report on March 4 when checking the earlier ER record. The ABG report was not noted anywhere in the record on March 4, and he did not learn about it until he was sued. Nevertheless, even if the ABG results had been available on March 4, Dr. Belue would not have changed his diagnosis because Dr. Raulerson had witnessed a seizure with a brief post-ictal state, which is commonly seen in seizures with a neurological basis. Dr. Belue did not consider a pulmonary condition on March 4 because Edwards had presented with a seizure, not with any [ usymptoms that made Dr. Belue think of a pulmonary condition. In fact, Dr. Raulerson did not recall Edwards complaining of shortness of breath when he presented at the ER. There was no complaint of chest pain.

At no time did Dr. Raulerson consider the possibility that Edwards had a pulmonary embolus. Dr. Raulerson thought that his problems were most likely neurological. Dr. Raulerson stated that although some of Edwards’s symptoms could have been explained by a pulmonary embolus, they could have also been explained by many other conditions as well, which is why pulmonary embolism is a difficult diagnosis to make.

Dr. Ehrlich, who examined Edwards at 9:10 p.m. on March 4, marked in the progress notes that a brain CT scan and an EEG were normal. Dr. Belue consulted with Dr. Ehrlich on the morning of March 5. Dr. Belue noted that Edwards had mild cardiomegaly, or an enlarged heart, which was shown on the radiologist report from the March 1 chest X-ray. On March 5, Edwards was exhibiting high diastolic BP and he still had tachycardia. A brain MRI on March 5 was normal.

Dr. Belue noted that the gastroenteritis had resolved. After talking with Edwards, his impression was that Edwards was not post-ictal after his spells, which puzzled Dr. Belue because it is unusual for a neurological seizure not to be followed by a post-ictal state. Because of the normal brain CT scan and Dr. Ehrlich not having found anything in his evaluation, Dr. Belue began to suspect that Edwards’s presenting condition was not neurologically based.

| ^According to Dr. Belue, Dr. Ehrlich was not finished with his consult when they spoke on the morning of March 5, as Dr. Ehrlich ordered a video EEG monitor on March 5. It was a complete shock to Dr. Belue that Edwards had a pulmonary em-bolus, and he never suspected one until after the code was called.

Dr. Schreck opined that Dr. Belue breached the standard of care when he failed to diagnose the pulmonary embolism after Edwards returned to the hospital. It was his position that the information that Dr. Belue had retained from Edwards’s earlier treatment, coupled with the vital signs and symptoms presented on March 4, should have suggested to Dr. Belue that Edwards had a pulmonary embolus. Dr. Schreck added that Dr. Belue should have ordered a spiral CT or a VQ scan as part of the admitting workup to determine whether that condition was present.

Dr. Belue explained that history is the most important part of a pulmonary embo-lus diagnosis. He also stated that the VQ scan is not readily available on an emergency basis. Dr. Carlton did not think that the VQ scan is useful because it gives many false positives. In his opinion, the spiral CT of the chest is more worthwhile.

Regarding whether or not Edwards suffered true seizures, Dr. Schreck offered that Edwards could have been passing out and having muscle jerks that observers confused as seizures. Dr. Schreck also noted that Dr. Belue referred to the episodes as “spells” in his report, which indicated to Dr. |1fiSchreck that Dr. Belue was not convinced that Edwards actually had seizures.

Dr. Schreck believed that regardless of whether Edwards had true seizures or actually had syncopal episodes that observers confused as seizures, these incidents were symptoms of a pulmonary embolus and Dr. Belue needed to determine their relation to the other symptoms presented. Dr. Schreck referred to a progress note from Dr. Ehrlich on March 4 stating that there had not been a post-ictal state, and a progress note from Dr. Ehrlich on March 5 stating that despite therapeutic drug levels, Edwards had two seizures that were different from the others. Dr. Schreck felt that this should have prompted Dr. Belue to search for a non-neurological cause of the seizures.

Dr. Schreck conceded that it was reasonable for Dr. Belue to consult with Dr. Ehrlich. However, he pointed to Dr. Ehrlich’s note on March 4 that a preliminary EEG report was normal and no epilepti-form activity had been seen. Dr. Schreck felt that once Dr. Ehrlich could not find a neurological basis for the seizures, then Dr. Belue should have looked to a cardiopulmonary condition as the cause.

Dr. Carlton explained that syncope, or fainting, may be a symptom of a pulmonary embolus, but usually that occurs with a large pulmonary embolus. He was unsure why Edwards had so many episodes of syncope. Dr. Carlton’s theory was that an underlying lung disease may have made his lungs more susceptible to smaller em-boli before the saddle embolus occurred.

|17Pr. Carlton thought it was appropriate for Dr. Belue to consult with a neurologist because an episode that appears to be a seizure is not a common symptom presented by someone with a pulmonary embolus. Dr. Carlton would not have suspected a pulmonary embolus after witnessing Edwards’s spells. Subject to the caveat that he is not a family practitioner, Dr. Carlton felt that based upon the complaints that brought Edwards back to the hospital, Dr. Belue met the standard of care for his treatment of Edwards between March 4 and March 5.

Dr. Givler believed that nothing from Edwards’s second presentation at the ER suggested that he had anything but a neurological disorder, so it was not necessary for Dr. Belue to seek a consultation with a doctor other than a neurologist. Although shortness of breath is a symptom of a pulmonary embolism, Dr. Givler would not have considered it a symptom in Edwards’s case because he had complained that the shortness of breath had existed for a couple of months. In Dr. Givler’s opinion, Edwards did not have any symptoms that should have made Dr. Belue think there was a possible pulmonary embolism. In sum, Dr. Givler would not have expected Dr. Belue to suspect a pulmonary embolism based upon the history, test results, and physical findings presented both times that he treated Edwards.

Jury’s Determination that Dr. Belue Was Not Negligent

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 two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and infer-, enees are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La. 1989). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

Based upon our review of the hospital reports, test results, and the extensive and detailed medical testimony, we cannot conclude that the jury was clearly wrong in not finding that Dr. Belue was negligent in his diagnosis and treatment of Edwards.

II. Prescription

Mrs. Edwards contends that it was not until Dr. Belue filed his position paper with the medical review panel in August of 2001 that she realized that Dr. Alexander had been involved in her son’s treatment. Included with this position paper was Dr. Belue’s time sheet showing that he checked out of the ER at 10:45 p.m. on March 1. The request for a medical review panel was amended on September 26, 2001 to add Dr. Alexander as a defendant.

The period allowed for bringing a medical malpractice claim is set forth in La. R.S. 9:5628(A):

|19No action for damages for injury or death against any physician ... arising out of patient care shall be brought unless filed -within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Mrs. Edwards’s amended claim against Dr. Alexander would have been timely if the jury had found that Dr. Belue was negligent, as that would have meant that he was a solidary obligor with Dr. Alexander. La. R.S. 40:1299.47(A)(2)(a) states, in part:

The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.

Once the jury found that Dr. Belue was not negligent, he was no longer an alleged solidary obligor or joint tortfeasor with Dr. Alexander. The other original defendant, Dr. Raulerson, had been earlier dismissed with prejudice upon Mrs. Edwards’s motion. Therefore, the timely filing of a request for review of the claims against Drs. Belue and Raulerson did not suspend the running of prescription on the untimely-filed claim against Dr. Alexander.

Prescriptive statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished. Bustamento v. Tucker, 607 So.2d 532 (La.1992). The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spoil v. Otis Elevator Co., 601 So.2d 1355 (La.1992).2n However, when the plaintiffs petition reveals on its face that prescription has run, the plaintiff bears the burden of showing why the claim has not prescribed. Lima v. Schmidt, 595 So.2d 624 (La.1992).

It was not until September 26, 2001, that Mrs. Edwards amended her petition for a medical review panel to add her claim against Dr. Alexander. Because this was more than one year after the date of the alleged malpractice by Dr. Alexander, the petition on its face is prescribed. In her amended petition, Mrs. Edwards did not allege facts asserting that she was unaware of Dr. Alexander’s malpractice during the prescriptive period. Mrs. Edwards had the burden of proving a suspension of prescription as to her claim against Dr. Alexander.

Contra non valentem

In order to soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non va-lentem agere nulla currit praescriptio, which means that prescription does not run against a person who could not bring his suit. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992). Contra non va-lentem in medical malpractice suits is embodied in La. R.S. 9:5628. White v. West Carroll Hospital, Inc., 613 So.2d 150 (La. 1992).

The doctrine of contra non va-lentem acts as an exception to the general rules of prescription by suspending the running of prescription when the circumstances of the case fall into one of four categories. Mrs. Edwards asserts that the third and fourth categories of contra non valentem apply. Under the third category, prescription is suspended when “the debtor |21himself has done some act effectually to prevent the creditor from availing himself of his cause of action.” Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211. In order to trigger application of the third category, a doctor’s conduct must rise to the level of concealment, misrepresentation, fraud or ill practices. Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960. There is no indication that Dr. Alexander took any action that effectually prevented Mrs. Edwards from availing herself of his involvement in her cause of action. Neglecting to write anything on the ER chart does not rise to the level of concealment.

Prescription is suspended under the fourth category of contra non va-lentern when “some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.” Wimberly v. Gatch, 635 So.2d at 211. For the fourth category to apply, the plaintiffs ignorance of his cause of action cannot be attributable to his own willfulness or neglect, as a plaintiff is deemed to know what he could have learned by reasonable diligence. Renfroe v. State ex rel. Dept. of Transp. and Development, 01-1646 (La.2/26/02), 809 So.2d 947.

Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Id.

Dr. Alexander’s name appears numerous times in the medical records from the first ER visit:

| The “Emergency Room Sheet” has Dr. Alexander’s name typed in the blank for admitting physician, although Dr. Alexander’s name is scratched out and Dr. Belue’s name is handwritten in its place.
• The “Emergency Room Care Sheet” has Dr. Alexander’s name typed in the blank for ER physician.
• The Outpatient Instructions page has Dr. Alexander’s name typed under Edwards’s name.
• “Referred by. DR. ALEXANDER” is printed on the EKG chart.
• The Condition of Admission page has Dr. Alexander’s name typed under Edwards’s name.
• The radiologist’s report for the chest X-ray lists Dr. Alexander as the requesting physician.
• The confirmation of the marijuana positive from an outside lab has Dr. Alexander’s name typed in for doctor, although Dr. Belue’s name is handwritten at the top of the page.

It was explained at trial that Dr. Alexander’s name was probably typed on the ER sheet as admitting physician and on the ER care sheet as ER physician because he was the primary ER doctor at the hospital when Edwards first presented there. For the March 4 ER visit, Dr. Raulerson’s name was listed as the admitting physician and ER physician on these two sheets. Dr. Belue testified that protocol was the reason that Dr. Alexander’s name was listed on several other documents. Nevertheless, the reports from the blood chemistry test, blood culture, CBC, and drug screen all list Dr. Belue as the admitting physician. The ABG results page has a blank next to “Physician Name.”

If the mention of Dr. Alexander’s name on numerous documents in the ER record did not excite plaintiffs curiosity about the involvement of Dr. Alexander in her son’s treatment, then certainly questions had to be | ^raised when Dr. Belue’s dictated ER report from March 1 was read by plaintiff. Nowhere does this report mention either the seizure at 11:40 or the ABG results among the test results listed under laboratory data, even though the seizure was documented on the ER care sheet and the box next to the ABG was checked and circled on the ER care sheet.

In the “Significant Findings and Treatment” section of the report that he dictated on April 27, 1999, Dr. Belue mentioned what happened in the ER after he left. This section stated:

This is a 28-year-old black male student at GSU who presented to the ER on 3/1/99 and was treated for gastroenteritis with fever. Following that discharge he had some type of episode while he was still in the ER and subsequently received some IV fluids and then released. He related the next few days he was scared to go anywhere because he would lose consciousness and shake all over. He presented back to the ER for evaluation. While he was there, he had a witnessed seizure with urinary incontinence. He had no previous history of seizure disorder or any other significant problems. He was admitted to the hospital for care with neurological evaluation.

While the above-quoted section does not mention Dr. Alexander, it also does not mention Dr. Raulerson’s involvement on the second ER visit. Moreover, this report does not reference the ABG results. We note that while this report states what happened on March 1 following discharge, what occurred following discharge is not referenced in Dr. Belue’s earlier dictated report from that actual ER visit.

Dr. Belue apparently did not know that Dr. Alexander was involved in the treatment of Edwards until after the malpractice claim was brought. ^Nevertheless, this does not excuse plaintiff from closely examining the medical records and satisfying her curiosity about why Dr. Alexander’s name appears on so many of the records related to the first ER visit. In a reply to the position papers at the medical review panel level, Mrs. Edwards’s counsel wrote that prior to Dr. Belue’s submission, he assumed that Dr. Alexander’s name was on the ER Care Sheet in error. Reasonable diligence would have prompted Mrs. Edwards to attempt to ascertain if Dr. Alexander had been involved in her son’s treatment on March 1.

Compare Shortess v. Touro Infirmary, 520 So.2d 389 (La.1988), where the medical records did not reveal that the plaintiffs tainted blood came from anywhere other than Touro’s blood bank, and the plaintiff had no way of knowing that an outside blood bank was the source of her tainted blood as that could only be discovered by tracing serial numbers through Touro’s card files.

In this matter, the trial court granted the exception of prescription after the trial on the merits was completed. When evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261. Based upon this record, we cannot conclude that the trial judge was clearly wrong in granting the exception of prescription.

li>¡vLa. C.C.P. art. 1153

Mrs. Edwards farther argues that the amended claim is timely because of the provisions of La. C.C.P. art. 1153, which states:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

La. C.C.P. art. 1153 is an attempt to strike a balance between a plaintiffs right to proceed against the correct defendant and the defendant’s right to be free from stale and prescribed claims. Fortenberry v. Glock, Inc. (USA), 32,020 (La.App.2d Cir.6/16/99), 741 So.2d 863.

The doctrine of relation back of amended pleadings should be liberally applied, particularly in the absence of prejudice. Strouse v. M & M Properties, 32,792 (La.App.2d Cir.3/3/00), 753 So.2d 434.

In Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), the supreme court established four criteria to be used in determining whether an amendment changing the identity of the party sued relates back to the date of filing of the original petition:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading.
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits.
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him,
(4)The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to ^assertion of a new cause of action which would have otherwise prescribed.

The amended complaint in this case does not relate back because Dr. Alexander was a wholly new and unrelated defendant. His only connection to Dr. Belue in this matter was that they both worked in the ER at Lincoln General Hospital, with Dr. Alexander being the Director of the ER. This is not a case where Mrs. Edwards has simply misnamed a defendant through a pleading mistake and wishes to substitute defendants. Compare Findley v. City of Baton Rouge, 570 So.2d 1168 (La.1990), where the plaintiff, intending to sue the owner of a public park, mistakenly sued the city of Baton Rouge instead of a separate legal entity, BREC, over which the city had an element of control. In allowing the amended petition to relate back, the supreme court likened the relationship between Baton Rouge and BREC to that of a parent corporation and a subsidiary.

Mrs. Edwards’s amended petition does not relate back to the date on which the original petition for a medical review panel was filed. Accordingly, the amended claim was untimely, and her cause of action against Dr. Alexander has prescribed.

CONCLUSION

We find no error in the jury’s conclusion that Dr. Belue was not negligent. We also do not find error in the trial court’s dismissal of all claims against Dr. Alexander on the grounds of prescription. Accordingly, |a7it is unnecessary for this court to review the remaining assignments of error relating to allocation of fault, damages, and the taxing of costs.

DECREE

At appellant’s costs, the judgment dismissing her claims is AFFIRMED.

      . The nurses normally carry out the actual patient discharge.

      . Dr. Alexander claims that the ABG was ordered by an ER nurse.

      . The hospital had a rotating system of doctors being on-call for patients who did not have a primary care doctor, and Dr. Belue happened to be on-call at the time.

      . Dr. Belue testified that it is typical to admit new-onset seizure cases to the ICU.

      . Dr. Givler, a member of the panel, explained that the oxygen level was abnormal on the blood gas test, and the panel felt that Dr. Alexander did not address it to their satisfaction.

      . Mrs. Edwards dismissed her claim against Dr. Raulerson on December 9, 2002.

      . Edwards was hypoxic because his pulse ox-imeter reading was 93% on room air.

      . Dr. Belue told Edwards to follow up on the possibility of sarcoidosis with his doctor.

      . Dr. Belue checked on Edwards at 6:40 p.m. after being notified of the 6:35 seizure. Valium was prescribed. Dr. Ehrlich saw Edwards at 9:10 p.m., then called the next morning at 7:00.

      . On March 4, Edwards still had tachycar-día, and an EKG was abnormal.

      . Dr. Raulerson explained the common procedure at the ER at the time was that the doctor would check off the tests he wanted performed, the secretary circled it when the test was ordered, and then the circle was blackened, usually by the secretary, when the results came back and were placed in the chart. In addition to the ABG, the boxes for the chest X-ray and urine screen were checked and circled but not blackened.

      . Exhibits relevant to the exception were entered into evidence outside the presence of the jury.

      . Mrs. Edwards further complained on appeal about Dr. Raulerson testifying as an expert when he was not qualified to do so. Her counsel did not object to this testimony, instead merely stating that Dr. Raulerson "is getting into expert testimony and he has not been qualified. I just want to mention that for the record.” Because there was no objection, there was no ruling by the court. Moreover, the testimony at issue involved an insignificant urinalysis from March 4.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    William H. BAKER, Jr., Plaintiff-Appellee v. STANLEY EVANS LOGGING and American Interstate Insurance Company, Defendants-Appellants.
    Nos. 42,156-WCA, 42,157-WCA, 42,158-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Rehearing Denied Aug. 9, 2007.

      Law Offices of Michael S. Coyle, Ruston, by William A. Jones, Jr., for Appellants.
    Darrell R. Avery, Jonesboro, for Appel-lee.
    Before STEWART, CARAWAY and MOORE, JJ.
   STEWART, J.

| Stanley Evans Logging and American Interstate Insurance Company (“Evans Logging”) appeals the WCJ’s award of workers’ compensation benefits to William Baker. Because we find that the WCJ erred in finding that Mr. Baker did not commit fraud under La. R.S. 23:1208, we reverse and render judgment as outlined herein.

FACTS

This workers’ compensation matter is a consolidated proceeding of three disputed claims, two filed by the employer/insurer, Evans Logging and the other filed by the employee, William Baker. The single issue presented by this appeal centers around whether Baker committed fraud by allegedly failing to. disclose post-injury jobs, employers, earnings, and other misrepresentations.

Baker was employed by Evans Logging as a logging subcontractor when he cut his foot with a chain saw on December 4, 2001. American Interstate is the workers’ compensation insurer for Evans Logging. Baker got stitches in his foot and was released to return to work after missing a few days. Baker continued to work for Evans Logging untií March 2002, when Evans Logging sold its equipment and Baker’s employment ended. Following his dismissal, Baker requested workers’ compensation benefits for the December 2001 injury. American Interstate accepted the claim and began paying benefits of $186.24 a week.

On August 16, 2002, Baker’s treating physician, Dr. Richard Ballard, performed a Functional Capacity Evaluation (FCE) on Baker and concluded that he was able to work at the Medium-Heavy Physical Demand Level for Ran eight-hour day. Baker contended that his indemnity rate was too low and retained counsel to pursue his claim. American Interstate asked for earnings records to substantiate the request for higher benefits, but none were supplied. However, after a meeting with American Interstate, Baker’s benefits were increased to the statutory maximum of $898.00 per week, and American Interstate issued a check for $4,629.65 in retroactive benefits, based on the higher average weekly wage.

Next, American Interstate attempted to conduct vocational rehabilitation with Baker, but he refused to participate. After determining that Baker could earn at least $1,440.00 per month in spite of his injury, American Interstate placed Baker on Supplemental Earnings Benefits (SEB) at a rate of $1,256.00 per month. Baker then filed a Disputed Claim for Benefits on March 12, 2004.

Baker eventually supplied American Interstate with his tax returns in an effort to establish that he qualified for higher indemnity benefits. Included in that package of information was a payment voucher reflecting that Baker had to pay an extra $2,145.00 in federal taxes on his 2001 return. Baker also sent monthly earnings reports to American Interstate. These reports, known as “1020 forms,” were all signed by Baker who attested to their veracity.

During the course of discovery, Baker was questioned concerning his income. American Interstate contended that Baker had given them many false statements, including the fact that he had not paid the IRS,.$2,145.00 in.2001 as he had claimed. Apparently Baker did not actually file any tax ^returns for the years of 2001 and 2002 until August 5, 2004. American Interstate also learned that Baker had been employed by persons other than those he revealed to them. After gathering this information, American Interstate filed a Disputed Claim alleging that Baker was capable of earning 90% of his pre-injury wage and that he had committed fraud entitling them to reimbursement for any amounts previously paid to Baker.

Trial was held October 3, 2005, and following trial the WCJ ruled that American Interstate had not proved that Baker had committed fraud, nor had they proved that he was capable of earning 90% of his pre-injury wage. This appeal ensued.

DISCUSSION

Standard of Review

The trial court’s assessment of Baker’s knowledge is a factual finding. Absent an abuse of discretion or manifest error, a reviewing court cannot disturb the factual findings of a trial court. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, supra; Charrier v. Primm, 40,038 (La.App.2d Cir.08/19/05), 909 So.2d 1033.

Fraudulent Statements Under La. R.S. 23:1208

Evans Logging argues that the WCJ erroneously determined that Baker did not make false statements which would justify the forfeiture of benefits and deny him additional SEBs. In pertinent part, La. R.S. 23:1208 provides:

|4A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * *
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by the workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Freeman v. Triad Builders, 39,657 (La.App.2d Cir.5/11/05), 902 So.2d 1220, writ denied, 05-1562 (La.12/16/05), 917 So.2d 1118. Because statutory forfeiture of workers’ compensation benefits for willfully making a false statement for the purpose of obtaining benefits is a harsh remedy, it must be strictly construed. Risk Management Services v. Ashley, 38,431 (La.App.2d Cir.5/14/04), 873 So.2d 942, writ denied, 04-1481 (La.9/24/04), 882 So.2d 1138. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. An inadvertent and inconsequential lBfalse statement will not result in the forfeiture of benefits. Jim Walter Homes, Inc. v. Prine, 01-0116 (La.App. 1st Cir.2/15/02), 808 So.2d 818; Rosson v. Rust Constructors, Inc., 32,789 (La.App.2d Cir.3/1/00), 754 So.2d 324, writ denied, 00-0914 (La.5/26/00), 762 So.2d 1105.

Appellate review of determinations of misrepresentations for forfeiture of benefits under La. R.S. 23:1208 is governed by the manifest error/clearly wrong standard of review. Freeman v. Triad Builders, supra. Under this standard, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880 (La.1993).

Appellants contend that Baker intentionally misled them concerning the sources and amount of his income from secondary jobs in the filling out of the 1020 forms. We have previously held that failure to disclose a second job or hiding income from post-injury employers while drawing workers’ compensation benefits can violate 1208. Franklin v. Health-South, 41,458 (La.App.2d Cir.9/20/06), 940 So.2d 83, citing Tuminello v. Girling Health Care Inc., 98-977 (La.App. 5 Cir. 1/26/99), 731 So.2d 316. Evans Logging contends that Baker failed to disclose at least $50,000.00 in post-injury income. Baker asserts that there are no records prior to 2004, and review of his income statements reveals that he actually under reported his expenses which resulted in a monthly average of $377.59 in unreported income over a 42-month period. Although the record does not allow us to |fimake a specific finding as to the exact amount of income that was unreported, we do not find Mr. Baker’s arguments persuasive. The 1020 forms provide the unequivocal directive to report all gross earnings on the form. We find that Baker’s failure to disclose at least twelve post-injury jobs is not inadvertent and constitutes fraud.

We are unpersuaded by Baker’s claim that he thought he was only supposed to report “net” income instead of “gross” income. The WCJ lost sight of the fact that Baker failed to report any outside income from his employers on his 1020 forms. Baker stated in his answers to interrogatories that all the earnings on his 1020 forms came from garden produce and fishing worms, and even if he is taken at his word, it is evident that he failed to disclose considerable earnings from his outside employers. This court is not unmindful of the fact that Mr. Baker is indeed a sophisticated worker who is a high school graduate with five years of college at LSU. Moreover, Mr. Baker is also a relatively astute businessman having been involved in significant timber and land transactions throughout his career.

Moreover, misrepresenting pre-injury earnings in order to receive more in indemnity benefits is 1208 fraud. Darby v. Richard, 2002-1154 (La.App. 3d Cir.02/05/03), 838 So.2d 141. The parties dispute this intent of Mr. Baker’s actions concerning the reporting of his tax returns and demonstration of his pre-injury income. Evans Logging requested Baker’s tax returns for 2001-2002. Baker turned over the returns for 2001 and 2002 and included a voucher indicating he owed the IRS $2,145.00. However, he did not file the returns until 2004. Baker failed to disclose the status of |7those returns when Evans Logging sought information concerning his pre-injury income. While not necessarily fraudulent, those actions to give indicia of a penchant for concealing information on the part of Baker that undermine his credibility. We find that Baker’s delivering federal and state tax returns, with payment vouchers, when those returns had not actually been filed, is an attempt to mislead his employer with respect to his income for the purpose of obtaining benefits.

Consequently, the WCJ erred by awarding him SEB and finding that Baker had not committed 1208 fraud. However, we are unable to determine from the record an exact date for the start of misrepresentations. Since the award of restitution under the statute is permissive rather than mandatory, we decline to do so. Nonetheless, we order Mr. Baker to pay penalties of $1,500.00 and to pay all trial and appellate costs.

CONCLUSION

Based on the above and foregoing, we reverse the WCJ’s finding of no fraud by Mr. Baker and reverse the WCJ’s award of benefits to Baker. We also order Mr. Baker to pay penalties of $1,500.00 and to pay all trial and appellate costs.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Patrick D. CLOWARD, Appellant.
    No. 42,123-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Rehearing Denied Aug. 9, 2007.

      James D. Sparks, Jr., Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Neal G. Johnson, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| defendant, Patrick D. Cloward, seeks review of his sentence for computer-aided solicitation for sexual purposes, a violation of La. R.S. 14:81.3. The trial court imposed a sentence of ten years at hard labor without benefit of probation, parole or suspension of sentence, in addition to a fine of $5,000 or one year in default of payment. A timely motion for reconsideration of sentence was denied. For the following reasons, we affirm the conviction and sentence.

FACTS

R.J. and Defendant met and chatted over the internet for approximately two years. When they started, R.J. was 12 years old and Defendant was 21 years old. After the victim reached the age of 13, Defendant told her they were dating. During their chats, Defendant forwarded pictures of himself to the victim and told her that other 13 — and 14-year-old girls exposed themselves to him via web cameras. At some point, Defendant told the victim he would travel to the Monroe, Louisiana area to visit with the victim. Knowing that her mother and aunt would not allow the visit, Defendant and the victim concocted a plan in which Defendant called the victim’s aunt pretending to be the grandmother of one of the friends of the victim. The plan required the “grandmother” to seek ^permission for the victim to attend a carnival with the victim’s friend and grandmother.

On November 11, 2005, the victim went to a local shopping mall with her aunt. As part of a prearranged plan, the victim walked away from her aunt to meet Defendant. The pair walked around the mall and then went to Defendant’s hotel room. Once there, the couple took pictures, including one of them kissing. When the victim’s aunt was unable to locate her in the mall, she contacted the victim’s mother, mall security and the police. Continuous telephone calls were made to the victim’s cell phone. Eventually, the victim’s mother contacted Defendant on his cell phone. The mother had Defendant’s cell phone number because the victim would call him from her cell phone and the number would appear on the mother’s monthly statement. Defendant initially pretended to the mother that he was still in California and had no idea of the victim’s whereabouts. When the victim’s mother left a message on her cell phone indicating the police would be contacted, the victim decided to return to the shopping mall where she rejoined her family.

The next day, the victim, her aunt and Defendant met for breakfast. The aunt requested that the Defendant produce identification because she was suspicious that Defendant was older than he had pretended. Defendant did not produce the identification. After the group left the restaurant and went to a local department store, the victim’s aunt contacted the police and Defendant was arrested in the store.

lain searching Defendant’s hotel room, the police found pictures of the couple, as well as scrap pieces of paper on which calculations were written to determine the year in which a person would have been born to be 18 years old. The victim told the police that Defendant initially told her he was 17, but later disclosed that he was actually 23 years old. The victim also reported that Defendant had, at some time during their exchanges, told her that his name was “Patrick Wall.” The victim’s computer contained numerous instant messages from Defendant as well as pictures of Defendant.

The Monroe Police Department contacted the police department in Gardena, California. A search of Defendant’s home produced a “script” on which Defendant had written facts that were presented to the victim’s-aunt in the telephone call requesting permission for the victim to visit with her friend during the time Defendant was to be in Monroe. The Gardena Police Department also forwarded a copy of an incident report in which the suspect, listed as Patrick Wall, made threats against two teenage girls. One of the girls, an 11-year-old, chatted with the suspect over a two — to three-year period prior to the threats. A picture of the suspect, “Patrick Wall,” was confirmed to be Defendant.

Defendant pled guilty to the charge of computer-aided solicitation for sexual purposes. The trial court sentenced him to ten years at hard labor without benefit of probation, parole or suspension of sentence. Defendant was ordered to pay a $5,000 fine or serve one year in default of payment with the default time being consecutive to any other jail time. The trial Leourt also ordered that Defendant have no contact with the victim for the remainder of his life, nor was he to have any contact with other minors or any access to the internet. The trial court urged the Department of Corrections to make an official determination of Defendant’s ability to pay the victim’s reasonable costs of counseling resulting from the offense and any other pecuniary loss caused by the offense.

DISCUSSION

EXCESSIVE SENTENCE

Defendant now alleges the sentence imposed in this case is excessive for the numerous errors assigned in brief. We find Defendant’s assignments of error to be without merit.

The test imposed by the reviewing court in determining the excessivéness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are Defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied, 06-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof that the defendant committed the other offenses. State v. Jones, 31,569 (La.App.2d Cir.12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40.

A defendant’s lack of remorse is a proper sentencing consideration. State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, writ denied, 98-1199 (La.9/25/98), 724 So.2d 775; State v. Daniels, 607 So.2d 620 (La.App. 2d Cir.1992).

The second inquiry involves a determination of whether the sentence imposed is too severe. This inquiry depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a needless and purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539. On review, an 17appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

Defendant argues that the sentence imposed is too severe and that the trial judge committed errors in determining the sentence. Defendant’s arguments are not supported by the record. In determining an appropriate sentence for Defendant, the record shows that the trial court appropriately considered his age, his offender class, and his criminal history, social history and prior education. The trial judge was not required to give any factor a particular weight in determining Defendant’s sentence.

Defendant argues that the trial court improperly considered an incidént report from the Gardena, California Police Department in determining his sentence. Defendant argues that he was not charged with a crime, nor was he properly identified as the perpetrator of the offense. Additionally, Defendant contends that the consideration by the trial court of the report amounts to ■ punishment for an uncharged offense which may not be criminal activity in the state of California.

In the California incident, the suspect in the report began chatting with a young girl over the internet and arranged to meet her. The young girl arrived at the location, but changed her mind about the meeting and left. The suspect apparently saw the girl leaving and followed her at: tempting to persuade her to spend timé with him. The young girl and the suspect continued to exchange instant messages over the internet, while the girl reminded the suspect that she was only 11 years old. The suspect replied, “be quiet, don’t remind me.” Eventually, the young girl attempted to | germinate her communications with the suspect; however, the suspect continued to contact and harass the victim and her older sister via instant messages. The suspect then resorted to making telephone calls to the victim’s home. The victim’s father intercepted one of the telephone calls and reiterated the demands that the suspect have no contact with the young girls. Over several months, the suspect continued periodic calls, which culminated in a call wherein the suspect threatened possible harm to the girls. According to the girls’ father, the suspect indicated that he was aware of the family’s schedule and stated he could rape and kill the girls anytime he wanted and the father would be unable to protect them.

While Defendant had not been charged with a crime in connection with the offense report, the trial judge properly considered the substance of the report at the time of sentencing. The perpetrator of the California crime was known as “Patrick Walls,” a name Defendant used during the times he chatted with the victim in the instant case. From a photograph obtained from the victim in the California case, the police were able to determine that “Patrick Wall's” and Defendant were, in fact, the same person. While charges had not been filed in the California case, the trial judge properly considered this Information in determining an appropriate sentence for this défendánt. State v. Russell, supra; State v. Jackson, supra.

Despite Defendant’s contentions, we do not find constitutional error in the imposition of the maximum sentence. Considering Defendant and the facts of this case, this sentence is appropriate to the circumstances of the offense. Defendant apparently targeted a young girl, gained her confidence Rover an extended period of time and then arranged to meet the child through deception and manipulation. Defendant clearly does not comprehend the seriousness of the offense and his actions. Even in brief, Defendant argues that the victim was distraught about his arrest and did not want him to be arrested. This underscores the gravity of the situation. Defendant knew the victim was vulnerable due to her age and likely to suffer from the effects of his manipulations for a long time. This maximum sentence is lawful and is neither grossly disproportionate to the severity of the offense of conviction, nor shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence.

SPECIAL CONDITIONS

Defendant also argues that the trial court lacked authority to impose additional conditions to Defendant’s sentence. The trial court ordered that Defendant have no contact with the victim or any other minor and was not to have access to the internet.

Additionally, the trial court informed Defendant of the requirement that he register as a sex offender and seek mental health treatment upon release. As acknowledged by Defendant, we find that the trial court provided this information to Defendant as notice of conditions which could be applicable in the future should Defendant become eligible for release from custody. We also find no error in the trial court informing Defendant of these conditions. See La. R.S. 15:561, et seq.

J^RESTITUTION AND COSTS

The trial court also urged the Department of Corrections to make a determination of Defendant’s ability to pay the victim’s reasonable costs of counseling that resulted from the offense and any other pecuniary loss caused by the offense. Restitution for counseling costs and actual pecuniary losses may be awarded to the victim. La. C. Cr. P. art. 883.2. Pursuant to La. R.S. 15:561, et seq., the cost can be imposed by the Department as a condition to Defendant’s supervised release upon expiration of his sentence. The trial court correctly referred this to the Department.

TIME SERVED

The trial court did not indicate that Defendant would receive credit for time served in accordance with La. C. Cr. P. art. 880. The 1997 amendment to La. C. Cr. P. art. 880 is designed to make credit for prior custody self-operating even on a silent record. Thus, there is no need for the sentencing court to reference credit for time served. State v. Ignot, 29,745 (La.App.2d Cir.8/24/97), 701 So.2d 1001, writ denied, 99-0336 (La.6/18/99), 745 So.2d 618.

FINE

The trial court imposed a $5,000 fine or serve one year in jail in default of payment. An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991). At trial and on appeal, Defendant was represented by retained counsel. At this time and Inunder these facts, the trial court committed no error in imposing a jail term in default of payment of the fine. State v. Collins, 32,409 (La.App.2d Cir.9/22/99), 763 So.2d 618.

CONCLUSION

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . In 2005, pursuant to the statutory revision authority of the Louisiana State Law Institute, the section heading was changed to "Computer-aided solicitation of a minor.”

      . In accordance with La. R.S. 46:1844(W), the minor child will be referred to by initials only.

      .The victim’s aunt lived in the home and was a primary caregiver because of the work schedule of the mother of the victim.

      . We note that the ADA and defense counsel agreed to a cap of five years. This limitation was rejected by the trial court and Defendant chose to plea without a cap. We reject Defendant’s argument that this unaccepted cap was indicative of an appropriate sentence.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Arthur Stephens CAMPBELL, Appellant.
    No. 42,099-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Laura M. ' Pavy, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, J. Dhu Thompson, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   GASKINS, J.

11 Following a bench trial, the defendant, Arthur Stephens Campbell, was convicted as charged of armed robbery and simple kidnapping. The trial court adjudicated him to be a second felony offender. As such, he was sentenced to 51 years at hard labor without benefit of parole, probation or suspension of sentence on the armed robbery charge. He was given a concurrent sentence of five years at hard labor on the simple kidnapping charge. The defendant appealed. We affirm the defendant’s convictions and sentences.

FACTS

On April 23, 2004, the victim, Oliver Foster, was at the Disco Nine Thousand Club in Shreveport when he met Charlene Johnson, Gregory Johnson, and the defendant. The victim agreed to give Charlene Johnson and the defendant a ride from the club. Gregory Johnson followed behind in another vehicle with some friends. After leaving the club, they arrived at the residence of William Campbell, the defendant’s brother.

Upon arriving at the residence, the victim, Charlene Johnson, and the defendant exited the victim’s vehicle. The next thing that the victim recalled was being hit by two males. The victim was beaten with the butt of a rifle and robbed of $35 by William Campbell and the defendant.

After the beating, the victim was forced into the backseat of his vehicle by the defendant. Gregory Johnson got in the driver’s seat while Charlene Johnson got in the front passenger seat. As they drove along, the defendant and the victim began to struggle in the backseat. The defendant yelled for help, and Charlene Johnson took a knife from her purse and began | ¡.stabbing the victim’s leg repeatedly. Thereafter, Gregory Johnson stopped the vehicle, and the victim was thrown out of the vehicle. After his attackers fled in his vehicle, the badly beaten victim flagged down a police officer and was taken to the hospital by ambulance. At some time during the ordeal, the victim’s bottom lip was badly lacerated.

The police developed Charlene Johnson, the defendant, and William Campbell as suspects after Gregory Johnson came forward with information about the incident. While the victim was unable to pick the defendant out of a photo lineup, he was able to identify Charlene Johnson from one. She was arrested and eventually gave a statement detailing what happened on the night of the attack.

The defendant was arrested on charges of simple kidnapping and armed robbery. In September 2005, he waived his right to a jury trial, opting to be tried by a judge alone. Following a bench trial in December 2005, he was convicted of both offenses.

The state filed a second felony habitual offender bill asserting that the defendant had a 2000 felony conviction of possession of a firearm by a convicted felon for which he had been sentenced to six and a half years at hard labor without benefits. The defendant’s motion to quash the habitual offender bill was denied, and the trial court adjudicated him to be a second felony offender. The defendant also filed a motion for judgment of acquittal which was denied, as was a motion to deviate from the habitual offender sentence.

IsThe trial court sentenced the defendant to 51 years at hard labor without benefit of parole, probation or suspension of sentence as a second felony offender on the armed robbery charge. A sentence of five years at hard labor was imposed for the simple kidnapping charge. The court directed that the sentences be served concurrently. A timely motion to reconsider sentence was denied.

The defendant appealed, asserting three assignments of error.

SUFFICIENCY OF EVIDENCE

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. The reviewing court accords great deference to the judge or jury’s decision to accept or reject the | testimony of a witness in whole or in part. State v. Morrison, 40,852 (La.App.2d Cir.4/12/06), 927 So.2d 670.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support the requisite factual conclusion. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 85.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability'of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12.

La. R.S. 14:64 defines armed robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Discussion'

The defendant asserts that the testimony of Charlene Johnson and Gregory Johnson was “simply insufficient” to convict him on the charge of armed robbery because they were “compromised” and trying to “save” themselves.

A review of the evidence shows that the victim left the club with Charlene Johnson and the defendant and that Gregory Johnson followed in another car. Upon their arrival at a house, all parties exited the vehicles and walked toward the house. The victim was attacked by two men, one of whom was armed with a rifle, and robbed of $35. He was then forced back into his vehicle. Also occupying the vehicle were Charlene Johnson, Gregory Johnson, and the defendant. During an ensuing struggle between the victim and the defendant, Charlene Johnson assisted the defendant by stabbing the victim in the leg. The victim was then thrown from his vehicle. The three remaining occupants fled in the vehicle, which they later abandoned.

| ^Although the victim was unable to identify the defendant, he was able to identify Charlene Johnson. She initially refused to assist the police in their investigation. However, she eventually cooperated and implicated the defendant. Gregory Johnson likewise provided information of the defendant’s involvement in the beating and robbery of the victim. Both testified that they were in a room of the house with William Campbell’s girlfriend and heard the victim being beaten. Charlene Johnson testified that she saw William Campbell with a rifle that night immediately after the beating and that he told her and Gregory that the defendant wanted them. Gregory Johnson testified that he was aware that the defendant’s brother had guns in his house. When they saw the victim again, he had been badly beaten; the defendant was in close proximity to the victim. Charlene Johnson and Gregory Johnson testified that they left the house in the victim’s vehicle with the victim and the defendant in the backseat and that the victim began to struggle with the defendant. Charlene Johnson admitted coming to the defendant’s aid by stabbing the victim in the leg.

The defendant presented the testimony of the woman who raised him as an alibi witness. She testified that on the night of the victim’s attack, she woke up several times and that the defendant was there, staying on her couch, “as far as I know.” She admitted that she never spoke to the police about the defendant’s alleged alibi and that she did not speak to defense counsel until the defendant had been in jail for two months.

As previously noted, a reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in 17whole or in part. The trial judge was well aware of the circumstances surrounding the testimony of the witnesses. In particular, the judge had been informed of Charlene Johnson’s plea bargain and the state’s grant of immunity to Gregory Johnson. The trial judge evaluated the credibility of the witnesses and chose to reject the testimony of the defendant’s alibi witness. Instead the judge accepted the testimony of Charlene Johnson and Gregory Johnson, both of whom admitted to wrongdoing in the incident — Charlene to stabbing the victim in the leg with a knife, and Gregory to driving the victim’s vehicle after he had been brutally beaten. After viewing all of the evidence in the light most favorable to the prosecution, we conclude that it was reasonable for the trial court to find that the defendant was guilty of every essential element of the offense of armed robbery against the victim beyond a reasonable doubt.

This assignment of error is without merit.

WAIVER OF JURY TRIAL

Law

A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. La. C. Cr. P. art. 780. The trial judge may accept a waiver of a jury trial at any time prior to the commencement of trial. La. C. Cr. P. art. 780(B). A waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. State v. Kahey, 436 So.2d 475, 486 (La.1983); State v. Richardson, 39,456 (La.App.2d Cir.3/2/05), 896 So.2d 257, writ denied, 2005-0845 (La.11/29/05), 916 So.2d 165; State v. Lokey, 04-616 (La.App. 5th Cir.11/30/04), 889 So.2d 1151, writ denied, 2004-3195 (La.5/6/05), 901 So.2d 1093. Because of the importance attached to the right to a jury trial, a trial judge must exercise great care in allowing a criminal defendant to waive the right. State v. Kahey, supra; State v. Richardson, supra.

Although it remains the preferred method for the district court to advise a defendant of the right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. State v. Kahey, supra; State v. Pierre, 2002-2665 (La.3/28/03), 842 So.2d 321; State v. Davis, 41,180 (La.App.2d Cir.11/3/06), 942 So.2d 1196. Likewise, it is preferred, but not necessary, for the defendant to waive the right to jury trial personally. State v. Pierre, supra; State v. Davis, supra. Counsel may waive the right on the defendant’s behalf, provided that the defendant’s decision to do so was made knowingly and intelligently. State v. Pierre, supra; State v. Davis, supra.

While the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. State v. Frank, 549 So.2d 401 (La.App. 3d Cir.1989); State v. Brooks, 2001-1138 (La.App. 1st Cir.3/28/02), 814 So.2d 72, writ denied, 2002-1215 (La.11/22/02), 829 So.2d 1037; State v. Bell, 2004-1183 (La.App. 3d Cir.3/2/05), 896 So.2d 1236, writ denied, 2005-0828 (La.11/28/05), 916 So.2d 143; State v. Rideau, 2005-0462 (La.App. 4th Cir.12/6/06), 947 So.2d 127; State v. Goodwin, 06-439 (La.App. 5th Cir.12/27/06), 948 So.2d 1125.

| sPrior to accepting a jury trial waiver, the trial court is not obligated to conduct a personal colloquy inquiring into the defendant’s educational background, literacy, and work history. State v. Allen, 2005-1622 (La.App. 1st Cir.3/29/06), 934 So.2d 146; State v. Goodwin, supra. Additionally, nothing in the statutes or the jurisprudence requires the trial judge to inform a defendant of the details involving the number of jurors and the votes necessary for a conviction. State v. Kenney, 516 So.2d 175 (La.App. 4th Cir.1987); State v. Goodwin, supra; State v. Ruffin, 02-798 (La.App. 5th Cir.12/30/02), 836 So.2d 625, writ denied, 2003-3473 (La.12/10/04), 888 So.2d 831.

Minutes and Transcript

The court minutes for September 9, 2004, show that the defendant was present in court with counsel, waived arraignment and pled not guilty. The trial court informed the defendant that he could waive jury trial and elect to be tried by the court. The court minutes and the transcript for September 20, 2005, reflect that the defendant, in the presence of his counsel, Michael Bowers, waived his right to a jury trial and elected to be tried by a judge. The transcript contains the following recitation:

MR. BOWERS: I’m sorry, your Honor. In regards to the jury trial setting, Mr. Campbell has expressed his wish to me that he wishes to waive his right to a jury trial and ask for a bench trial in this matter.
THE COURT: Mr. Campbell, do you understand that you have a right to a trial by jury?
THE DEFENDANT: Yes, ma’am.
|10THE COURT: Do you understand that if you waive or give up that right, then the judge will hear your case?
THE DEFENDANT: Yes, ma’am.
THE COURT: Do you understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: Do you understand that if the judge hears your case and you are ultimately convicted of the charge, it would also be the same judge to sentence you? Do you understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: Understanding all of that, do you still wish to waive and give up the jury?
THE DEFENDANT: Yes, ma’am.
THE COURT: So ordered.

Discussion

The defendant argues that the trial court’s advisal of his right to a jury trial was too general for the defendant to make a knowing and intelligent waiver. Specifically, he claims that the trial court should have advised him that he had a right to a 12-person jury, that 10 of those jurors would have to agree on a verdict, and that “it would have been to his advantage to have a jury decide his guilt or innocence.”

The defendant, with counsel, personally appeared before the trial court, and defense counsel informed the judge of the defendant’s desire to waive the jury trial. After the trial court addressed the defendant and discussed the ramifications involved, the defendant reiterated his intention to waive the jury trial. The trial court then accepted the waiver.

|n Contrary to the defendant’s assertion, the trial court was only required to determine whether the defendant’s waiver was made knowingly and intelligently. That determination did not require a Boykin-like colloquy or a discussion regarding jury size and number of jurors required for a verdict. Thus, the trial court did not err in accepting the defendant’s waiver and permitting the defendant to proceed to trial before the judge alone.

This assignment is therefore without merit.

ERROR PATENT

In his final assignment of error, the defendant requested that this court review the record for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556; State v. Jones, 41,628 (La.App.2d Cir.1/24/07), 948 So.2d 356. We have reviewed the record for errors patent and found none.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The defendant was a convicted felon at that time by virtue of a 1993 conviction for possession of cocaine.

      . Although Charlene Johnson and Gregory Johnson both testified that Gregory was in a separate car, the victim testified that he was a passenger in the victim’s vehicle.