text:
    Terrell L. ARROYO, Wife of/and Lionel J. Arroyo, Sr. v. EAST JEFFERSON GENERAL HOSPITAL, Kenner Regional Medical Center, and Dr. Roland LeBlanc.
    No. 06-CA-799.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      Fred L. Herman, Daniel W. Nodurft, Thomas J. Barbera, New Orleans, Louisiana, J. Van Robiehaux, Jr., Michael Gorbaty, New Orleans, LA, for Plaintiff/Appellant.
    Kurt S. Blankenship, Robert I. Baudouin, Njeri K. Battiste, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

|2PIaintiffs, Terrel L. Arroyo, wife of /and Lionel J. Arroyo, Sr., appeal from the summary judgment granted in favor of one of the Defendants, Kenner Regional Medical Center (Kenner Regional), dismissing all claims against it. For the reasons which follow, we reverse and remand.

According to the Plaintiffs’ petition, on January 18, 2001, Lionel Arroyo, Sr. and his wife, Terrell Arroyo, were shopping in the Esplanade Mall in Kenner, Louisiana, when Mr. Arroyo experienced signs and symptoms of a stroke. Mrs. Arroyo asked the ambulance driver to take her husband to a hospital that could render emergency services for a stroke. The emergency technicians brought him to Kenner Regional. When he arrived, Mr. Arroyo exhibited symptoms of blurred vision, slurred speech, and muscle weakness. He was cared for at Kenner Regional by Dr. Roland LeBlanc. Dr. LeBlanc determined Mr. Arroyo experienced a transischemic attack (TIA), commonly known as a stroke.

|sAfter approximately five to seven hours, Mr. Arroyo’s family had him transferred to Ochsner Hospital. In this suit against Kenner Regional and Dr. LeBlanc, the Plaintiffs contend that, because of their negligence and legal fault in not treating Mr. Arroyo in a timely manner and failing to render emergency medical services in a timely manner, he sustained serious injuries.

Kenner Regional answered the suit and filed a motion for summary judgment. Kenner Regional asserted that there was no evidence that it breached the applicable standard of care in the treatment of Mr. Arroyo. The medical review panel, which convened in this matter to evaluate the claims, unanimously concluded that Ken-ner Regional did not fail to meet the applicable standard of care. Kenner Regional submitted the review panel findings. Ken-ner Regional noted that the Plaintiffs had failed to provide expert testimony to contradict the panel findings and, therefore, Kenner Regional was entitled to summary judgment in its favor.

The Plaintiffs subsequently identified an expert, Dr. Harold M. Kurlander, and supplied an affidavit sufficient to defeat the motion. The trial court rendered judgment on July 11, 2005, denying the summary judgment motion.

Kenner Regional then took the deposition of Dr. Kurlander and re-urged its motion for summary judgment. Kenner Regional contended that the deposition was not sufficient to support Plaintiffs’ contention that Kenner Regional was liable to them. The Plaintiffs disputed that assertion and opposed the motion. The trial court granted summary judgment in favor of Kenner Regional. It is from this judgment that Plaintiffs appeal.

|40n appeal, Plaintiffs argue that there are material issues of fact precluding summary judgment and that Kenner Regional is not entitled to judgment as a matter of law.

Kenner Regional argues that Plaintiffs’ expert, Dr. Kurlander, had no criticism of Kenner Regional but only of Dr. LeBlanc. Therefore, there are no issues of fact as to Kenner Regional.

Plaintiffs counter that the absence of criticism by Dr. Kurlander of Kenner Regional does not conclude the matter. Ken-ner Regional had policies and procedures in place, specifically concerning the need for consultations with specialists, which Dr. LeBlanc allegedly did not follow. Plaintiffs argue that Kenner Regional retained responsibility for and control over the emergency room physician, because he was accepted by the hospital, the hospital retained responsibility for billing and maintaining records, and the hospital provided space, supplies, and equipment for the emergency room and attending physicians. Moreover, Kenner Regional held itself out as providing an emergency room that could provide proper care for stroke victims. The thrust of Plaintiffs’ argument is that Kenner Regional is liable to Plaintiffs under the doctrine of respondeat superior.

A motion for summary judgment shall be granted 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. The party seeking summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. 5Appellate review of summary judgments is de novo, utilizing the same criteria that guide the trial court. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152; Nuccio v. Robert, 99-1327 (La.App. 5th Cir.4/25/00), 761 So.2d 84, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544.

A hospital is responsible for the negligence of its employees under the doctrine of respondeat superior. Campbell v. Hospital Service Dist. No. 1, Caldwell Parish, 33,874 (La.App. 2nd Cir. 10/04/00), 768 So.2d 803, writ denied, 00-3153 (La.1/12/01), 781 So.2d 558. Under this theory, the standard of care and burden of proof involved is the same as for the physician whose activities are questioned. Powell v. Fuentes, 34,666 (La.App. 2nd Cir.5/9/01), 786 So.2d 277; Campbell, supra. To prevail in a medical malpractice action against a physician, the plaintiff must establish that the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and also that a causal relationship existed between the alleged negligent treatment and the injury sustained. La. R.S. 9:2794; Martin v. East Jefferson Gen. Hasp., 582 So.2d 1272 (La.1991); Smith v. State, Through DHHR, 523 So .2d 815 (La.1988); Foumet v. Roule-Grahm, 00-1653 (La-App. 5th Cir.3/14/01), 783 So.2d 439, writ denied, 01-0985 (La.6/15/01), 793 So.2d 1242.

Generally, employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed. La. C.C. art. 2320. In contrast, a principal generally is not hable for the negligence of an independent contractor while performing his contractual duties. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). Two exceptions to this general rule exist: (1) where the work is ultra hazardous; and (2) if the principal reserves the right to supervise or control the work of the independent contractor. Villaronga v. Gelpi Partnership Number 3, 536 So.2d 1307, 1310 (La.App. 5th Cir.1988), writ denied, 540 So.2d 327 (La.1989).

Of primary concern is whether the principal retained the right to control the work. The important question is whether, from the nature of the relationship, the right to do so exists, not whether supervision and control was actually exercised. Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972); Mack v. CDI Contractors, Inc., 99-1014 (La-App. 5th Cir.2/29/00), 757 So.2d 93. The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Tower Credit, Inc. v. Carpenter, 01-2875 (La.9/4/02), 825 So.2d 1125.

The existence of an independent contractor agreement is not necessarily dispositive of the issue of whether a doctor is an independent contractor, as opposed to an employee of a hospital. The courts will inquire as to the real nature of the relationship and the degree of control exercised or ability of control by the hospital over the doctor’s activities. Prater v. Porter, 98-1481 (La-App. 3rd Cir.1999), 737 So.2d 102; Suhor v. Medina, 421 So.2d 271 (La.App. 4th Cir.1982). Whether an emergency room physician is an employee or an independent contractor is a factual issue turning on the control exercisable by the hospital over his or her activities. Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La.1986); Campbell, supra; Su-hor, supra. In fact, “[a] hospital’s duty and corresponding liability for breach of that duty is in direct proportion to its right to control the medical treatment rendered there.” Sibley v. Board of Supervisors of Louisiana State University, 490 So.2d 307, 314 (La.App. 1st Cir.1986).

In a case similar to the instant one, our Brethren on the Third Circuit recently considered the question of whether a hospital is liable for the conduct of its emergency room physician. Arrington v. Galen-Med, Inc., 02-0987 (La-App. 3rd 7Cir. 2/5/03), 838 So.2d 895. It was acknowledged that the chief argument in favor of the hospital was that it was not responsible for the emergency room physician’s conduct, because he was an independent contractor. However, in finding liability on the part of the hospital, the court found that the agreement providing that the emergency room physician was an independent contractor was not dispositive of the case. Rather, the issue turned on the factual determination regarding the degree of control the hospital retained over the physician whether it was exercised or not.

The court in Arrington also cited approvingly the following passage from a Second Circuit case, Campbell v. Hospital Service Dist. No. 1, Caldwell Parish, 33,874 (La.App. 2nd Cir. 10/4/00), 768 So.2d 803, writ denied, 00-3153 (La.1/12/01), 781 So.2d 558:

We find this situation-the providing of emergency serviees-distinguishable from that of a surgeon or other doctor holding hospital privileges contracting with a patient, where the physician is typically held to be an independent contractor. This is because the patient is seeking treatment through a hospital emergency room with no choice as to treating physician. In fact, other states have long questioned the propriety of permitting hospitals to shield themselves from liability by labeling their emergency room physicians as “independent contractors,” imposing liability upon hospitals despite independent contractor relationships erected to shield them from liability. This is because an apparent, or ostensible agency is created by a hospital “holding itself out” as a full service facility and creating the image that its physicians are employees of the hospital, and not independent contractors.... “[I]t would therefore be patently unfair to bind the patient to the ramifications of a contract that is neither public knowledge or applicable to all emergency room situations between a physician staffing service and the hospital.”

Applying these precepts to the case before us, we find that the trial court erred in granting summary judgment in favor of Kenner Regional. Although the trial court did not provide reasons for judgment, it appears from the record the decision was based on the lack of any testimony from the Plaintiffs’ medical expert | ^regarding improper conduct by Ken-ner Regional. However, we find this does not resolve all material issues of fact. Rather, as found by the Second and Third Circuits, we too find that the hospital can be held liable for the conduct of its emergency room physicians under a respondeat superior legal theory. Medical testimony has no bearing upon this legal basis for potential liability. The fact that the emergency room physician has an agreement with the hospital referring to him as an independent contractor is not dispositive of the matter. The trial court must determine whether there are genuine issues of fact regarding the degree of control possessed by the hospital over the emergency room physician and, if not, whether the hospital is entitled to judgment as a matter of law. Based on the record before us, there remain genuine issues as to material facts precluding judgment as a matter of law in favor of Kenner Regional.

Accordingly, for the foregoing reasons, we reverse the trial court judgment granting summary judgment in favor of Kenner Regional and remand the matter for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

      . Plaintiffs sought writs from the ruling but the application was denied. The Court found that the Plaintiffs had an adequate remedy by appeal. Arroyo v. Kenner Regional, 06-0400 (La.App. 5th Cir. 6/15/06).


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Renate KING, Plaintiff-Appellee v. SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, Defendant-Appellant.
    No. 42,071-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Rehearing Denied May 3, 2007.

      Neal R. Elliott, Jr., Baton Rouge, for Appellant.
    Pesnell Law Firm by W. Alan Pesnell, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

^ The Louisiana Department of Health and Hospitals (“LDHH”) appeals a judgment from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, which held that the state guidelines applicable to annuities were unenforceable, because they were more restrictive than federal guidelines. For the following reasons, we affirm.

FACTS

Renate King filed an application with the LDHH for Medicaid Long Term Care (“LTC”) benefits on August 8, 2005. Mrs. King was denied LTC benefits on the basis of excess resources. Her countable resources included an annuity her husband, William King, acquired valued at $138,881.22. According to the LDHH, the annuity would be considered a non-countable resource if it had fulfilled Louisiana’s requirement that Mr. King name the State of Louisiana as the residual beneficiary on the annuity. LDHH calculated Mrs. King’s excess resources totaled $129,144.62 which far exceeded all resource limits.

Details of Mr. King’s anmdty

The commercial annuity at issue was paid with a single premium of $138,881.22 and lasted a period of two years, well within the life expectancy of Mr. King. The annuity paid a monthly amount of $5,792.14 to Mr. King providing a payback in excess of the amount paid for the annuity. The annuity was sold by Fidelity and Guaranty Life Insurance Company, in the State of Louisiana, and provides for no balloon payment. The annuity contract clearly contains a Medicaid Single Premium Immediate Annuity Waiver Endorsement setting forth that the annuity is 12non-transferable, non-assignable, totally and permanently irrevocable, and has no cash value. LDHH admits that the annuity is actuarily sound. The beneficiary of the annuity is the William D. King Estate.

Procedural History

LDHH notified Mrs. King that she was ineligible for LTC benefits by a notice dated October 18, 2005. Mrs. King requested a fair hearing on November 15, 2005. An administrative hearing was held regarding the ineligibility determination, and the administrative law judge (“ALJ”) rendered a decision upholding the LDHH determination. Mrs. King filed a petition to review, and oral arguments were heard by the trial court on August 7, 2006. The trial court reversed the ALJ decision, and found Mrs. King eligible for LTC benefits. The trial court issued written reasons and stated that “Louisiana’s requirement that a person name the state as a beneficiary on an annuity is unenforceable and cannot be used to deny benefits.” It is from this ruling that the LDHH appeals.

LAW AND DISCUSSION

In the instant case, we must determine the legal soundness of Louisiana’s requirement that an annuitant name the state as the residual beneficiary for the annuity in order to be designated as a non-countable resource at the time of Mrs. King’s application. This requirement is commonly referred to as a “state-payback” provision. Mrs. King argues that as a result of the “state-payback” provision, the Louisiana medicaid eligibility methods are unlawfully more restrictive and do not comport with the preemptive federal guidelines.

IsMedicaid and Applicable Provisions

Congress enacted Title XIX of the Social Security Act, or the Medicaid Act, in 1965, establishing a cooperative federal-state program in which the federal government reimburses states for a portion of the cost of medical care for needy persons. 42 U.S.C. § 1396 et seq.; Schweiker v. Gray Panthers, 453 U.S. 34, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981). State participation in the program is voluntary, but states choosing to participate must comply with the federal statute’s requirements. Hams v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). The test for Medicaid eligibility is essentially a needs-based test, with coverage being denied if the applicant exceeds a ceiling in countable resources. The Medicare Catastrophic Coverage Act of 1998 (“MCCA”), 42 U.S.C. § 1396r-5, amended the Medicaid Act to establish a mechanism to protect couples from being forced to deplete their assets to qualify for Medicaid.

The MCCA established impoverishment provisions by which a portion of a couple’s resources are protected and not considered available to pay for nursing care expenses. In determining eligibility, the community spouse resource allowance (“CSRA”) is not considered available to the institutionalized spouse, but all resources above the CSRA must be spent for that spouse in order for that spouse to be eligible. The CSRA is determined by calculating the total of all of the couple’s resources, whether jointly or separately owned, as of the time a spouse is institutionalized. Half of that total is then allocated to each spouse. Wisconsin Dept. of Health and Family Services v. Blumer, 534 U.S. 473, 122 S.Ct. 962, 151 L.Ed.2d 935 |4(2002). At the time of Mrs. King’s application, the CSRA was in the amount of $95,100.00 and the allowable resource limit was $2,000.00.

In the instant case, a relevant provision in the MCCA is 42 U.S.C. § 1396r-5(b)(l) which states, “During any month in which an institutionalized spouse is in the institution ... no income of the community spouse shall be deemed available to the institutionalized spouse.” However, more stringent requirements were put in place to restrict the ability of individuals to shelter resources in order to qualify for Medicaid as part of the Omnibus Budget Reconciliation Act of 1993. 42 U.S.C. § 1396p.

Louisiana, through the LDHH, created a Medicaid Eligibility Manual (“MEM”) giving effect to the federal statutes that establish our state standards for Medicaid benefits, including eligibility for LTC nursing facilities. MEM §§ B-100, B-300. Eligibility for LTC vendor payments is specifically based on the applicant’s need, calculated on the applicant’s resources, including income and certain property. MEM § H-831.4.

Applicable definitions

The term “resource” is defined in the Social Security regulations, 20 C.F.R. § 416.1201(a), and states:

For purposes of this subpart L, resources means cash or other liquid assets or any real or personal property that an individual (or spouse, if any) owns and could convert to cash to be used for his or her support and maintenance.
§ 416.120(d). Examples of resources that are ordinarily liquid are stocks, bonds, mutual fund shares, promissory notes, mortgages, life insurance policies, financial institution accounts (including savings, checking, and time deposits, also known as certificates of deposit) and similar items. 20 C.F.R. § 416.1201(b).

|rAs a general rule, a revocable trust is a resource for purposes of Medicaid eligibility, and an irrevocable trust is not a resource. See Smith v. Secretary, Louisiana Dept. of Health and Hospitals, 39,368 (La.App. 2d Cir.03/02/05), 895 So.2d 735; 42 U.S.C. § 1396p(d). A “ ‘trust’ includes any legal instrument or device that is similar to a trust, but includes an annuity only to such extent and in such manner as the Secretary of the Department of Human Services specifies.” (Emphasis added.) 42 U.S.C. § 1396p(d)(6).

Congress delegated broad authority to the Center of Medicare and Medicaid Services (“CMS”), through the Secretary of the Department of Health and Human Services, to define eligibility requirements for Medicaid consistent with the statutory scheme and the reasonable exercise of the delegated power. Schweiker, supra; State of La. v. United States Dept. of Health and Human Services, 905 F.2d 877 (5th Cir.1990). The CMS has a manual (“CMS manual”) which sets forth the directives of the Secretary of the Department of Health and Human Services. Pursuant to the power delegated to CMS, annuities are defined in the CMS manual which states:

The annuity may or may not include a remainder clause under which, if the annuitant dies, the contracting entity converts whatever is remaining in the annuity into a lump sum and pays it to a designated beneficiary.
Annuities, although usually purchased in order to provide a source of income for retirement, are occasionally used to shelter assets so that individuals purchasing them can become eligible for Medicaid. In order to avoid penalizing annuities validly purchased as part of a retirement plan but to capture those annuities which abusively shelter assets, a determination must be made with regard to the ultimate purpose of the annuity (i.e., whether the purchase of the annuity constitutes a transfer of assets for less than fair market value). If the | ^expected return on the annuity is commensurate with a reasonable estimate of the life expectancy of the beneficiary, the annuity can be deemed actuarially sound.
... If the individual is not reasonably expected to live longer than the guarantee period of the annuity, the individual will not receive fair value for the annuity based on the projected return. In this case, the annuity is not actuarially sound and a transfer of assets for less than fair market value has taken place, subjecting the individual to a penalty.

At issue in this case is whether, at the time of Mrs. King’s application, MEM I-1634.2 as promulgated, was enforceable in light of the federal guidelines. Louisiana’s MEM 1-1634.2 specifically states:

For Medicaid eligibility purposes an annuity is considered a legal instrument or device similar to a trust. An annuity is defined as a contract or agreement by which one receives fixed non variable payments on an investment for a lifetime or a specified number of years. An annuity containing a balloon payment will be considered an available resource. An annuity purchased by or for an individual using that individual’s assets will be considered an available resource un less all of the following criteria are met.

The annuity:

1. is irrevocable;
2. pays out principal and interest in equal monthly installments (no balloon payment) to the individual in sufficient amounts that the principal is paid out within the actuarial life expectancy of the annuitant; and,
3. names the State of Louisiana, Department of Health and Hospitals or its successor agency as the primary and permanent residual beneñciary of funds remaining in the annuity, not to exceed any Medicaid funds expended on the individual during his lifetime; and,
4. is issued by an insurer or other body licensed and approved to do business in the jurisdiction in which the annuity is established.
Annuities which do not meet all of the above criteria must be amended to comply with these requirements. Annuities which |7do not provide for pay out of principal and interest in equal monthly installments and for which documentation is received from the issuing company that the “pay out” arrangement cannot be changed, will be considered to meet the new requirements once amended to name the State of Louisiana, Department of Health and Hospitals or its successor agency as the primary and permanent residual beneficiary of funds remaining in the annuity, not to exceed any Medicaid funds expended on the individual during his lifetime.

(Emphasis added).

LDHH believes it followed the rulemak-ing procedure necessary to promulgate the state’s treatment of annuities. Specifically, LDHH points out that they obtained the required approval from CMS, allowing implementation of the requirement at issue. LDHH also makes much of the correspondence between a CMS employee and the Kings’ annuity representative who had inquired into the validity of MEM I-1634.2. The CMS response, not surprisingly, stated “first, let me assure you that Louisiana’s plan amendment fully comports with federal statutes and regulations, which is why it was approved by CMS.” Mrs. King, on the other hand, points to the CMS manual and other federal statutes which allow annuities, such as Mr. King’s annuity, to be a non-countable resource without the “state-payback” provision. Thus, Mrs. King argues, this more restrictive state imposed language is unenforceable.

Standard of Review

As explained in our prior decision, Cox v. Secretary, Louisiana Dept. of Health and Hospitals, 41,391 (La.App. 2d Cir.08/25/06), 939 So.2d 550, when reviewing an administrative final decision in an adjudication proceeding, the trial court functions as an appellate court. Once a final | judgment is rendered by the trial court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the trial court’s judgment, no deference is owed by the court of appeal to the factual findings or legal conclusions of the trial court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the trial court.

The applicable standard of review is set forth in La. R.S. 49:964. Sub-section F of La. R.S. 49:964 provides that a reviewing court is confined to the record established before the agency (except in cases of alleged irregularity in procedure before the agency). A reviewing court’s function is not to weigh de novo the available evidence and to substitute its judgment for that of the agency. Nevertheless, the trial court and the court of appeal have the authority to reverse or modify the decision of the agency if substantial rights of the party seeking review have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedures; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) manifestly erroneous in view of the reliable, probative and substantial evidence in the record.

| sIt is well established that generally state regulations that are inconsistent with federal law are invalid under the Supremacy Clause. U.S.C.A. Const. Art. 6, cl. 2. Also, it is generally held that the Supremacy Clause applies to the regulatory scheme promulgated under the Medicaid act. See Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002); Missouri Child Care Ass’n v. Cross, 294 F.3d 1034 (8th Cir.2002); Antrican v. Odom, 290 F.3d 178 (4th Cir.2002), cert. denied, 537 U.S. 973, 123 S.Ct. 467, 154 L.Ed.2d 329 (2002). Although the narrow issue before us today is a matter of first impression for Louisiana, in the past we have found a denial of Medicaid benefits improper when based on a transfer of an annuity by an institutionalized spouse to a community spouse for her sole benefit. See Pacente v. Jindal, 99-0601 (La.App. 4th Cir. 12/29/99), 751 So.2d 343. However, case law in other states directly address annuities, the “state-payback” provision, and eligibility for Medicaid benefits and provide ample guidance.

In Mertz v. Houstoun, 155 F.Supp.2d 415, 427 (E.D.Pa.2001), where a Medicaid applicant sought a declaratory judgment that the denial of her application for benefits violated the Medicaid Act, the court recognized that:

[A] couple may effectively convert countable resources into income of the community spouse which is not countable in determining Medicaid eligibility for the institutionalized spouse by purchasing an irrevocable actuarially sound commercial annuity for the sole benefit of the community spouse. It is a loophole apparently discerned by lawyers and exploited by issuers who advertise such annuities as a means to qualify for Medicaid benefits.... It is not the role of the court 110to compensate for an apparent legislative oversight by effectively rewriting a law to comport with one of the perceived or presumed purposes motivating its enactment. It is for the Congress to determine if and how this loophole should be closed.

In James v. Richman, No. Civ. A. 3:05-2647, 2006 WL 1169703 (M.D.Pa. Mar.20, 2006), an institutionalized spouse was denied Medicaid benefits on the ground that an annuity purchased by a community spouse was an available resource to be counted in determining institutionalized spouse medicaid eligibility. Pennsylvania, like Louisiana, passed legislation which addressed irrevocable annuities and added restrictions including, “an annuity will not be considered an available resource if the annuity names the Department as the residual beneficiary of any funds remaining due under the annuity at the time of death of the annuitant, not to exceed the amount of Medical Assistance expended on the individual during his or her lifetime.” The James court opined, “the federal law is clear on the subject, and any change in federal law is a matter for Congress. The annuity such as the one present here is permitted and there can be no penalty.” Id. at 4.

The most analogous case to the instant matter is A.B. v. Division of Medical Assistance and Health Services, 374 N.J.Super. 460, 865 A.2d 701 (2005), where a Medicaid applicant was denied Medicaid benefits due to her husband’s refusal to name the state as a remainder beneficiary on an annuity. In that case, as in here, the husband purchased a commercial annuity to provide him with an income stream. In A.B., the couple’s daughter was designated as the remainder beneficiary. There, the court concluded that:

|n[S]ince the Federal Medicaid Act prohibits the State from treating an actuarially sound commercial annuity as an available resource of the community spouse, the State may not require that it be named as the remainder beneficiary of such an annuity. The State cannot implement such a requirement either as an informal policy or as a regulation.

Id. at 468, 865 A.2d 701.

We agree. The Louisiana “state-payback” provision is inconsistent with the federal Medicaid Act and the directives of the Secretary of Health and Hospitals. Therefore, it is unenforceable. Of notable interest is that LDHH explains, in brief and at oral arguments, that Louisiana’s Medicaid Director was consulted in the drafting of the annuity provisions for the federal Deficit Reduction Act of 2005. This, in effect, is an admission that Louisiana’s MEM 1-1634.2 annuity policy did not comport with federal statutory guidelines prior to the Deficit Reduction Act of 2005, and therefore was more restrictive.

No doubt the state was frustrated with the practice of what could be perceived as sheltering assets; indeed, it seems to be inconsistent with the intent of the Medicaid program which is to provide assistance to those truly in need. However, here the state has gone beyond the scope of the cooperative federal-state program and hastily implemented a guideline that did not comply with the applicable preemptive federal statutes. After a thorough analysis of the record and applicable law, we find LDHH’s reliance on CMS approval for the validity of the “state-payback” provision | ^misplaced. Accordingly, the record is clear that but for the annuity Mrs. King was entitled to LTC benefits.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s judgment finding that the “state-payback” provision, at the time of Renate King’s application, was unenforceable and that Renate King is eligible for Long Term Care Medicaid benefits.

AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The term "liquid resources” is defined in the regulations as:
      ... cash or other property which can be converted to cash within 20 days, excluding certain nonwork days as explained in

      . Reversed on other grounds.

      . With the federal Deficit Reduction Act of 2005, effective February 8, 2006, Congress enacted legislation that now requires annuities to name the participating state as the residual beneficiary. The statute was not in effect at the time of Mrs. King's application.


author: CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Daniel CAMPECHANO.
    No. 2006-KA-1329.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2007.
    Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Alireza Alivandivafa, Rule XX Student Attorney, Katherine Mattes, Clinical Instructor, Criminal Clinic, Tulane Law Clinic, New Orleans, LA, for Defendant/Appel-lee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge MAX N. • TOBIAS JR.).
   CHARLES R. JONES, Judge.

hOn October 15, 2005, the defendant, Michael Campechano, was arrested and charged with simple burglary in violation of La. R.S. 14:62. On January 9, 2006, the State filed a bill of information charging Campechano with simple burglary. The case was set for arraignment on January 19, 2006. The minute entry from that date states that Campechano did not appear. The case was reset for March 6, 2006. Notices were to be sent to Campechano at the only address provided on the screening action form, which was “Mexico.”

The court issued a minute entry on February 24, 2006, resetting the arraignment for March 9, 2006 because the court would be closed on March 6, 2006. However, Campechano did not appear. The case was reset for March 31, 2006. No minute entry from that date appears in the record; yet, an April 20, 2006 minute entry states that Campechano did not appear for arraignment on that date. The case was reset for a status conference on the following day.

| a At the status conference, the arraignment was set for March 12, 2006, and the notation was made to place Campechano on the jail list. Campechano was not transported to court on March 12, 2006, and the arraignment was reset for June 13, 2006. On that date, Campechano was not transported to court, and the arraignment was reset for July 10, 2006, but Campechano was not transported to court on that date either. The case was again reset for August 10, 2006.

On or about July 24, 2006, Campechano filed a pro se motion to quash and motion for speedy trial and release pursuant to La.C.Cr. P. art. 701. On July 27, 2006, Katherine Mattes of the Tulane Law Clinic appeared on the defendant’s behalf and filed a memorandum in support of the defendant’s motions. The court granted the motion for release pursuant to article 701. On August 8, 2006, the State filed a motion for appeal, which the court granted. On August 9, 2006, the court issued an amended minute entry stating that the court granted Campechano’s motion to quash on July 27, 2006.

A recitation of the facts of the offense is irrelevant to the issue raised by the State on appeal. The sole issue on appeal is whether the district court abused its discretion when it granted Campechano’s motion to quash.

In State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206, the Louisiana Supreme Court held that an appellate court is allowed to reverse a trial court’s judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.

On appeal, the State concedes that the unusual delays in the prosecution of Cam-pechano’s case may have entitled him to relief under La.C.Cr. P. art. 701. ^Nevertheless, the State maintains that the defendant was not entitled to have his motion to quash granted. We agree.

Campechano’s motion to quash alleged that his rights pursuant to La.C.Cr. P. articles 535, 572 and 578 were violated as well as his right to a speedy trial. Campe-chano was charged with simple burglary in violation of La. R.S. 14:62. La. R.S. 14:62(B) states that “[wjhoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.” Simple burglary is a felony because an offender may be sentenced to hard labor.

La.C.Cr.P. art. 535(4) provides that a motion to quash may be filed of right prior to the commencement of trial when based on the ground that the time limitation for the institution of prosecution has expired. Pursuant to La.C.Cr.P. art. 572(A)(2), “no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted” within four (4) years for a felony not necessarily punishable by imprisonment at hard labor. Furthermore, La.C.Cr.P. art. 578(A)(2) states that a trial must commence no later than two (2) years from the date of the institution of the prosecution in non-capital felony cases.

Campechano was arrested and charged with simple burglary on October 15, 2005. He filed his motion to quash on July 24, 2006. He was in custody for approximately nine (9) months at the time he filed his motion to quash. Thus, the State was not in violation of either article at the time Campechano’s motion to quash was filed.

The defendant’s final argument in support of his motion to quash was that his right to a speedy trial was denied. However, this Court has previously |4explained that the granting of a motion to quash is not the appropriate remedy for a speedy trial violation. In State v. Barnes, 94-1411 (La.App. 4 Cir. 12/28/94), 648 So.2d 480, 482, we reasoned as follows:

Denial of the right to a speedy trial is not one of the grounds listed in C.Cr.P. art. 532 for a motion to quash. Ground (7) is that the time limitation for commencement of trial has expired, but this has to do with the statute of limitations for the commencement of trial provided by C.Cr.P. art. 578 as to which art. 581 specifically provides a defendant with the remedy of a motion to quash. See State v. Taylor, 439 So.2d 410, 412 (La.1983). In State v. White, 247 La. 19, 169 So.2d 894, 896 (1964), the court held a motion to quash will not lie on the ground that the accused was denied a speedy trial.

We further reasoned the speedy trial procedure of art. 701 does not authorize a motion to quash or the granting thereof. Id.

Campechano filed a separate motion for speedy trial and release that was granted by the district court. His remedy was release from jail pursuant to La.C.Cr.P. art. 701. The defendant’s motion to quash, however, should not have been granted on the basis of a speedy trial violation because quashal is not the appropriate remedy and the defendant was already given relief for violation of his right to a speedy trial.

DECREE

For the foregoing reasons, the judgment of the district court is reversed, and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . Campechano's whereabouts have been unknown since his July 27, 2006 release from the Elayn Hunt Correctional Center.


text:
    James Tye POOLE v. ELEVATING BOATS, L.L.C.
    No. 2006-CA-0890.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2007.

      Laurence E. Best, Peter S. Koeppel, Maurice E. Bostick, Best Koeppel, APLC, New Orleans, LA, for Elevating Boats, L.L.C.
    Bernard H. Tieer, David L. Carrigee, Burke & Mayer, APLC New Orleans, LA, for Gulf Tran, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

liThe Appellant, Gulf Tran, Inc., seeks review of a district court judgment granting the summary judgment of Appellee, Elevating Boats, LLC, and ordering Gulf Tran to indemnify and defend third party plaintiffs, Elevating Boats, LLC and Jack-up Boat Service, LLC. We reverse.

Statement of Facts

This action arises out of a personal injury sustained by James Tye Poole while he was aboard the L/B Mammoth Elevator a/k/a M/V Mammoth Elevator (hereinafter referred to as “Elevator”), a lift boat. Poole sustained injuries when he fell from an unsecured wood platform located in the vessel’s lavatory. At the time, Poole was employed by Dynamic Industries (hereinafter referred to as “Dynamic”).

Mr. Poole filed suit against Elevating Boats, LLC (hereinafter referred to as “Elevating Boats”) as the owner of the vessel alleging negligence and unseaworthiness. Mr. Poole later amended his suit to state that Elevating Boats and/or Jack-up Boat Service, LLC (hereinafter referred to as “Jackup”) were the owners and operators of the Elevator.

| ^Elevating Boats subsequently filed a third-party demand against Gulf Tran, Inc. (hereinafter referred to as “Gulf Tran”)— the broker that Dynamic used to procure the Elevator for an offshore construction job. Elevating Boats subsequently filed a Motion for Summary Judgment requesting that Gulf Tran be ordered to defend and indemnify Elevating Boats. The district court granted the Motion for Summary Judgment from which Gulf Tran filed the instant appeal.

Assignments of Error

Gulf Tran asserts that the district court erred in the following respects: (1) ordering Gulf Tran to provide a defense to Elevating Boats before the underlying lawsuit is concluded and defense costs are paid; (2) failing to recognize that material facts were in dispute as to which of the two contracts executed between Gulf Tran and Elevating Boats governed the transaction regarding Elevator; (3) failing to recognize that a material fact was in dispute as to whether the vessel in question was unseaworthy prior to the commencement of the charter and to consider whether its unseaworthiness would vitiate the indemnity agreement; (4) failing to recognize that a material fact was in dispute as to whether Gulf Tran has a duty to indemnify Elevating Boats pursuant to the terms of the Blanket Charter agreement executed between the parties; and (5) failing to recognize that a material fact was in dispute as to whether the indemnity coverage extended to third persons, such as Mr. Poole.

Discussion

On review of a summary judgment, the appellate court considers the matter de novo. Doerr v. Mobil Oil Corp., 00-947, p. 27 (La.12/19/00), 774 So.2d 119, 136. Further, the reviewing court “asks the same questions as does the district court in ^^determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750.

Considering that a finding of the existence of a genuine issue of material fact would render a discussion of Gulf Tran’s obligation to defend and indemnify Elevating Boats moot, we will first discuss whether any genuine issue of material fact exists.

Gulf Tran alleges that Elevator was chartered by Dynamic, for whom Gulf Tran was acting as an agent. Gulf Tran further asserts that it did not exercise the traditional roles and functions of a charterer because it did not exercise any control over Elevator. Therefore, Gulf Tran contends that it is not bound by the terms of the Blanket Charter Agreement.

There were two agreements that Gulf Tran and Elevating Boats entered into: 1.) a Brokerage Agreement and 2.) a Blanket Charter Agreement (hereinafter referred to as the “charter”). Gulf Tran contends that only the terms of the Brokerage Agreement apply.

The indemnity clause of the Brokerage Agreement, which was executed in May of 2000, states as follows:

4. With respect to work performed hereunder, vessel operator agrees to indemnify and hold harmless Gulf Tran, Inc. against any and all claims, demands, liens or suits including, but not limited to claims, demands or suits form punitive damages, consequential damages, property damage, personal injury ... including, but not limited to any claims by any employee, master, crew of vessel operator or any party for whom Gulf Tran may be working, whether occasioned, brought about, or caused by, arising out of, or resulting from the unseaworthiness of vessels.

|4The charter agreement, dated September 10, 2003, states that Elevating Boats is the owner of Elevator and that Gulf Tran is the charterer. The applicable indemnity clause of the charter states as follows:

16. CHARTERER INDEMNITY
CHARTERER shall hold harmless, protect defend and indemnify OWNER, its officers, directors, agents, employees and joint or co-ventures from and against every claim, demand, damage, cause of action, suit or other litigation, without limit and without regard to the cause or causes thereof or the fault of any party, on account of or stemming from every instance of death or bodily injury to the persons of, or loss or damage to the vessel or other property of: CHARTERER; its employees; agents; lessor; contractors and their employees, agents, and lessor; subcontractors, and their employees, agents and lessor; invitees; and every other person and company caused to be aboard or attached to vessel by CHARTERER or by any person or company attributed above to CHARTERER, even though such death, injury, loss or damage be caused by the fault of OWNER or by those whose fault is imputed to the OWNER ...

In Ray v. Global Industries, Ltd., 2006 WL 305964 (W.D.La.), the Western District Court of Louisiana was faced with a similar issue in a factually analogous case. In Ray, the plaintiff filed suit for injuries he sustained while traversing a gangway between a vessel and a platform. At the time of the incident, plaintiff was an employee of Downhole Energy Services (“Downhole”). The vessel in question was owned by Global Industries Ltd. (“Global”), and the platform was owned and operated by J.M. Huber Corporation (“Huber”).

Plaintiff filed suit against Global and Huber, as well as other defendants. Global filed a third party demand against Kevin Gros Consulting and Marine | (¡Services, Inc. (“Gros”), seeking defense and indemnification pursuant to a general Master Time Charter agreement Global and Gros had executed.

Gros filed a Motion for Summary Judgment against Global asserting that it did not owe a defense and indemnification under the time charter agreement because Gros was only acting as a boat broker with respect to the vessel. The Western District Court denied the motion for summary judgment. The court reasoned that in order for the company to have access to Global’s boats, the charter agreement had to be in place. The Western District Court further explained:

To accept Kevin Gros Consulting’s argument, would cause the Charter Agreement to have no effect at all. That was not the intent of the parties. The Charter Agreement clearly states that Kevin Gros Consulting is the Charterer and that the Charterer will indemnify and defend the Owner, Global. There is a complete absence of language that states that someone else other than Kevin Gros Consulting shall indemnify and defend Global. The Charter Agreement and its provisions are applicable.

Ray, 2006 WL 305964, p. 2 (W.D.La.).

Similarly, this Court refuses to accept Gulf Tran’s assertion that it was merely acting as a boat broker. The charter agreement solely identifies Gulf Tran as the charterer and there is an absence of language identifying any other party as having the obligation of indemnifying Elevating Boats. Furthermore, without the execution of the charter agreement, neither Gulf Tran nor Dynamic would have had access to the vessels belonging to Elevating Boats. Therefore, we recognize that Gulf Tran is the proper party bound by the terms of the time charter it entered into with Elevating Boats.

This Court further notes that within the first paragraph of the charter agreement it states that “[tjhis Agreement shall be in effect upon the signing of [fiboth CHARTERER and OWNER, and this agreement shall supersede any previous agreement, contract or charter between CHARTERER and OWNER.” (emphasis added).

Due to the fact that Gulf Tran — the “charterer” of the vessel as identified in the charter — and Elevating Boats executed the charter after the Brokerage Agreement was signed, the teivns of the Brokerage Agreement were nullified by the terms of the charter. The district court, therefore, did not err in determining that the previously executed Brokerage Agreement was not applicable to the instant dispute.

In its next assignment of error, Gulf Tran asserts that there is a genuine issue of material fact as to whether Elevator was unseaworthy prior to it being chartered. Gulf Tran also contends that the district court failed to consider whether Elevator’s unseaworthiness would vitiate the indemnity agreement.

Gulf Tran contends that it was the unseaworthiness of the vessel that caused plaintiffs injury. Gulf Tran avers that owners have been held directly liable for the unseaworthiness of vessels under Federal Law. D/S Ove Skou v. Hebert, 365 F.2d 341 (5th Cir.1966).

The owner of a vessel has a duty to furnish a seaworthy vessel. This duty is absolute and nondelegable. Foster v. Destin Trading Corporation, 96-0803 (La.5/30/97), 700 So.2d 199, 209 (citing Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir.1993)). It extends to a defective condition of the ship, its equipment, or appurtenances. Id. (citing Phillips v. Western Co. of North America, 953 F.2d 923, 928 (5th Cir.1992)). “Liability for an unseaworthy condition does 17not depend on negligence, fault or blame. Thus, if an owner does not provide a seaworthy vessel, then no amount of prudence will excuse him, whether he knew of or should have known of the unseaworthy condition.” Id. at 202 (citing T.J. Schoenbaum, Admiralty and Maritime Law, Second Edition § 6-26 (1994)).

Nevertheless, the United States Court of Appeals for the Fifth Circuit has recognized the validity of indemnity agreements that reheve an indemnitee of liability for his or her own negligence; yet, the “[l]ong — established general principles of interpreting indemnity agreements require that indemnification for an indemnitee’s own negligence be clearly and unequivocally expressed.” Seal Offshore, Inc. v. American Standard, Inc., 736 F.2d 1078, 1081 (5th Cir.1984). With regard to indemnification, the Fifth Circuit has further rationalized:

A contract of indemnity should be construed to cover all losses, damages, or liabilities which reasonably appear to have been within the contemplation of the parties, but it should not be read to impose liability for those losses or liabilities which are neither expressly within its terms nor of such a character that it can be reasonably inferred that the parties intended to include them within the indemnity coverage. Thus, for example, it is widely held that a contract of indemnity will not afford protection to an indemnitee against the consequences of his own negligent act unless the contract clearly expresses such an obligation in unequivocal terms.

Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 333 (5th Cir.1981).

In the instant case, the charterer’s indemnification clause states that the charterer is responsible “even though such death, injury, loss or damage be caused by the fault of OWNER or by those whose fault is imputed to the OWNER ...” As the Louisiana Supreme Court explained in Foster, “fault” is distinct from “unseaworthiness.” We also note that the indemnity clause does not reference the |sterm “unseaworthiness.” Thus, it is not clear to this Court that the charter agreement expressed in clear and unequivocal terms that Elevating Boats and Jack Up Boat Service are entitled to indemnification for unseaworthiness claims because a statement to that effect is noticeably absent from the indemnity clause. Therefore, we find that a genuine issue of material fact exists as to whether Elevating Boats and Jackup Boat Service are entitled to defense and indemnification for Poole’s claim of unseaworthiness.

Lastly, we pretermit discussion of the remaining assignments of error because a determination that any genuine issue of material fact exists is sufficient to deny a motion for summary judgment.

Decree

The judgment of the district court is reversed as our de novo review indicates that a genuine issue of material fact exists. This matter is hereby remanded to the district court.

REVERSED and REMANDED

      . Paragraph 29 of the Blanket Charter Agreement is an arbitration clause. There is no evidence in the record that the instant dispute was ever submitted to arbitration.


author: ROLAND L. BELSOME, Judge.

text:
    Horace Perez ROWLEY, III and Wendy Rowley v. EYE SURGERY CENTER OF LOUISIANA, INC., Henry M. Haley, M.D. and Tig Specialty Insurance Company.
    No. 2006-CA-1243.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2007.

      H.P. Rowley III, Madisonville, LA, for Plaintiffs/Appellants.
    Stephen M. Pizzo, Mary K. Peyton, Blue Williams, L.L.P., Metairie, LA, for Defen-dani/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., and Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Plaintiffs-Appellants Horace Perez Rowley, III and Wendy Rowley appeal the trial court’s grant of Motion for Summary Judgment in favor of Defendants-Appel-lees, Eye Surgery Center of Louisiana, Inc., Henry M. Haley, M.D., and TIG Specialty Insurance Company. We affirm.

FACTS

On March 7, 2001, Appellant Horace Perez Rowley, III (hereafter “Mr. Row-ley”) underwent cataract surgery performed by ophthalmologist Henry M. Haley, M.D. (hereafter “Dr. Haley”) at the Eye Surgery Center of Louisiana, Inc. Thereafter, on March 11, 2002, Appellants filed a complaint with the Louisiana Patient’s Compensation Fund against Dr. Haley and the Eye Surgery Center of Louisiana, alleging that, inter alia, Dr. Haley committed malpractice while removing a cataract from Mr. Rowley’s left eye. A medical review panel was held on May 11, 2004. The panel unanimously concluded that the evidence did not support the allegation that Dr. Haley or the Eye Surgery Center of Louisiana breached the standard of care, and stated as reasons for their findings the following:

|2The patient experienced a well-recognized complication of cataract surgery, i.e. subluxed lens; which was dealt with appropriately at the time it occurred, and the correct referral was made.

Nevertheless, Appellants filed this lawsuit in August 2004, alleging that “several surgical mishaps” occurred during the surgery, including allegations that Dr. Haley’s pre-operative evaluation failed to assess retinal status in either eye; that Dr. Haley dropped the other lens into the eye, that Dr. Haley failed to give the patient appropriate instructions; that Dr. Haley negligently caused ciliary body detachment; and that Dr. Haley caused injury by failing to implant an intraocular lens. Appellants also claimed that Dr. Haley’s operative reports did not coincide with the findings at Tulane University Hospital and Clinic. Appellants filed suit against Dr. Haley, the Eye Surgery Center of Louisiana, Inc., and TIG Specialty Insurance Company (hereafter “TIG”), alleging that TIG was liable jointly, severally, and in solido with Dr. Haley and the Eye Surgery Center of Louisiana, Inc.

Discovery was subsequently propounded by Appellees to Appellants in October 2004, most significantly the request for the name of Appellants’ expert who would testify as to the alleged breach of the standard of care by Dr. Haley or the Eye Surgery Center of Louisiana. When answering the discovery, Appellants objected to the request and ultimately did not name an expert. Appellees then filed a Motion for Summary Judgment in April 2005, arguing that over the course of three years, Appellants had yet to name an expert, and moreover, that Appellants had not submitted any evidence to support the claims that Dr. Haley or the Eye ^Surgery Center of Louisiana, Inc. breached the standard of care, and that accordingly, Appellants would not be capable of meeting their burden of proof at trial.

PROCEDURAL HISTORY

On February 10, 2006, the trial court denied Appellants’ Motion to Continue Hearing on Defendants’ Motion for Summary Judgment. The court noted on the order denying the motion that “[t]his motion was faxed to the court and was not filed into the record. Mr. Rowley did not appear on Feb[ruary] 10, 2006 to argue or explain his need for a continuance or to oppose the Motion for Summary Judgment[.]” That same day, the trial court heard the Motion for Summary Judgment filed on behalf of Dr. Haley and the Eye Surgery Center of Louisiana, Inc., and granted the motion on April 20, 2006. This appeal followed.

STANDARD OF REVIEW

To determine whether the trial court erred in granting Appellee’s Motion for Summary Judgment, we review the trial court’s decision de novo under the same criteria that govern a trial court’s consideration of whether a summary judgment is appropriate. Herman v. St. Paul Ins. Co., 2006-0350, p. 3-4 (La.App. 4 Cir. 12/13/06), 947 So.2d 785; Blankenship v. Ochsner Clinic Foundation, 2006-0242 (La.App. 4 Cir. 8/16/06); p. 3, 940 So.2d 12, 14. A summary judgment should be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show I ¿that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. Id.; La. C.C.P. art. 966(B).

DISCUSSION

Assignment of Error #1

Appellants assert that the trial court erred in granting Appellees’ Motion for Summary Judgment without serving notice of the hearing on Appellants’ attorney, Harry T. Widmann, because the court denied his motion to withdraw as Appellants’ attorney. Because Appellants failed to raise this issue at the trial court level, we decline to consider this argument at the appellate level. Johnson v. Orleans Parish School Board, 05-1038, p. 6 (La.App. 4 Cir. 5/3/06), 932 So.2d 687, 690-91; Johnson v. State, 02-2382, p. 3 (La.5/20/03) 851 So.2d 918, 921.

Assignment of Error # 2

Next, Appellants argue that the trial court abused its discretion by denying Appellants’ motion to continue the hearing on Appellees’ Motion for Summary Judgment. We disagree.

A trial court is vested with wide discretion regarding its docket, case management, and in determining whether motions for continuances should be granted. Crawford v. City of New Orleans, 01-0802, p. 4 (La.App. 4 Cir. 1/23/02), 807 So.2d 1054, 1056; La. C.C.P. art. 1601. In this case, we find that the trial court had sufficient grounds to deny Appellants’ Motion to Continue: Appellants failed to fax the motion to the clerk of court; Appellants did not forward the | .^original motion to the clerk of court within five days of the date that Appellants faxed the motion to the Judge’s chambers; the hearing on Appel-lees’ Motion for Summary Judgment had been previously reset for hearing on several occasions; the Appellees’ Motion for Summary Judgment was originally filed more than one year preceding the Appellants’ Motion to Continue; and, finally, Appellants’ Motion to Continue was faxed to the Judge’s chambers almost two years after the Medical Review Panel rendered its opinion in May 2004. Likewise, we are also not persuaded by Appellants’ argument that it was mandatory for the trial court to grant the Motion to Continue pursuant to La. C.C.P. art. 1602.

Assignment of Error # S

Finally, Appellants argue that the trial court erred by granting Appellees’ Motion for Summary Judgment because genuine issues of material fact exist.

This Court has held that a medical review panel’s finding that the standard of care was not breached suffices to establish a prima facie case that a defendant is not liable and subsequently shifts the burden of proof to the plaintiff. Blankenship, 2006-0242; p. 5, 940 So.2d at 15. In this case, the medical review panel unanimously found that neither Dr. Haley nor the Eye Surgery Center of Louisiana, Inc. breached the standard of care. Additionally, Appellees attached to their Motion for Summary Judgment affidavits from two expert ophthalmologists Rwho testified that the standard of care had not been breached in this case. Conversely, Appellants have failed to name an expert or otherwise sustain their evidentiary burden of proof sufficient to overcome a motion for summary judgment. Because the particular facts and circumstances of this case are not such that a layperson could infer any alleged negligence, expert testimony is necessary. See, e.g., Pfiffner v. Correa, 94-0924, 94-0963, and 94-0992 (La.10/17/94), 643 So.2d 1228,1230; Blankenship, 2006-0242, p. 6, 940 So.2d at 16. Accordingly, we find that the trial court did not err in granting the Motion for Summary Judgment. This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s grant of the Motion for Summary Judgment.

AFFIRMED

      . "Subluxed” essentially means that something has been moved out of its normal position.

      .Mr. Rowley apparently sought treatment at Tulane University Hospital and Clinic subsequent to his surgery; however, none of the medical records or operative reports from Dr. Haley, the Eye Surgery Center of Louisiana, Inc., or Tulane Hospital are part of the appellate record.

      . This notation was handwritten and initialed by Judge Landrieu on February 10, 2006.

      . Appellants also filed a Motion for New Trial on April 28, 2006, which was heard on June 2, 2006 and then denied by the trial court on July 27, 2006.

      . We note that Appellants stated in their Motion to Continue Hearing on Defendant’s Motion for Summary Judgment: "Plaintiffs [sic] attorney has withdrawn and Plaintiffs are appearing pro se.” Additionally, Appellant also stated in the motion that “[t]his is Plaintiffs’ first pro se motion for a continuance” and signed the motion as Horace P. Rowley, III, "pro se” (Mr. Rowley is an attorney who is licensed to practice in Louisiana). Finally, we note that there is no objection in the record by Appellants to the personal service of Appellees’ Motion for Summary Judgment.

      . We also do not agree with Appellants' argument that because the trial court granted Appellees' motion to continue due to a scheduling conflict that was properly filed on December 22, 2005, but denied Appellants' improperly filed motion to continue same, that Appellants suffered disparate treatment.

      .Article 1602 provides:
      A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.
      La. C.C.P. art. 1602.

      . We decline to address Appellants' allegations regarding failure to warn, indemnification, overcharging, and an "assembly-line” cataract surgery business because Appellants did not submit these issues to the trial court in their Petition for Damages or in the Motion to Continue Hearing on Defendants' Motion for Summary Judgment. Although these allegations are recited in the Appellants' Motion for New Trial, Appellants do not assign as error that the Motion for New Trial was improperly denied by the trial court. As previously stated, it is well-settled that courts of appeal may not consider issues which were not raised in the pleadings or addressed by the trial court. See, e.g., Segura v. Frank, 630 So.2d 714, 725 (La.1994); Razor v. New Orleans Dept. of Police, 2004-2002, p. 5 (La.App. 4 Cir. 2/15/06), 926 So.2d 1, 5. See also Bergeron v. Blake Drilling & Workover Co., Inc., 59 9 So.2d 827, 848-49 (La.App. 1 Cir.l992)(holding that an issue regarding constitutionality of a statute raised for the first time in a motion for a new trial was not . timely raised and therefore not properly before the court on appeal). Finally, it is noteworthy that Appellants did not support these late allegations with affidavits or other evidence.


text:
    STATE of Louisiana v. Christopher HARVEY.
    No. 2006-KA-1196.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, Counsel for Plaintiff/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS P. BAGNERIS SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

hFACTS

On February 20, 2004, in case number 445-864, the State filed a Bill of Information charging Christopher Harvey with one count of simple burglary, in violation of La. R.S. 14:62. The defendant failed to appear for arraignment on March 30, 2004, April 6, 2004, and April 14, 2004. On April 22, 2004, the defendant appeared for arraignment and pled not guilty. That same day, the court found the defendant in contempt of court for failing a drug test and fined him $100.00. Motion hearings were then set for May 14, 2004; however, the defendant again failed to appear, and the court subsequently issued an alias capias for his arrest. The defendant was arrested on August 29, 2004, pursuant to the alias capi-as, and after a status hearing, the case was set for hearing on October 1, 2004. On that date, the court found no probable cause when the State was not prepared to proceed with the motion hearings. The court then set the matter for trial on November 8, 2004. On that date, the defendant again failed to appear, and the case was reset for November 23, 2004. On November 23, 2004, the State requested a continuance based on the unavailability of one of its witnesses, which the court denied, and the State dismissed the charges.

li»On December 9, 2004, the State reinsti-tuted charges under case number 454-843, charging the defendant with simple burglary. The defendant again failed to appear for his arraignment on December 20, 2004, and another alias capias was issued for his arrest. The defendant was arrested on January 23, 2005, and appeared for arraignment as to the reinstituted Bill of Information on January 26, 2005. The matter was set for trial on February 24, 2005, at which time the defendant appeared, but failed to stay until his case was called. After the failure to appear for trial, a third alias capias was issued for the defendant’s arrest, and he was arrested on March 20, 2005. On April 19, 2005, the trial court set a motions hearing and trial for May 5, 2005. On that date, the defendant filed an oral Motion to Quash, which the trial court granted that same day.

ASSIGNMENT OF ERROR

The sole issue in this appeal is whether the trial court erred when it granted the defendant’s Motion to Quash.

DISCUSSION

In his Motion to Quash, the defendant argues that his constitutional right to a speedy trial was denied when the State entered a nolle prosequi and then reinsti-tuted the charges after the State was denied a continuance. According to the transcript of the hearing on the motion to quash, the trial court granted the motion because the State failed to file a motion for continuance in conformity with La.C.Cr.P. art. 707, which provides that a motion for a continuance must be in writing, must specifically allege the grounds upon which it is based, and must be filed at least seven days prior to the commencement of trial.

|sThus, the State argues that granting the defendant’s motion to quash was not an appropriate response to the State’s failure to comply with La.C.Cr.P. art. 707. We note that La.C.Cr.P. arts. 532 and 534 specifically set forth the particular grounds upon which a motion to quash may be granted; the record in this case does not demonstrate that the defendant’s motion to quash asserts any of the grounds in either Article 532 or Article 534. Put another way, the Louisiana Code of Criminal Procedure does not provide for quashing a bill of information for failure to comply with the mandates of La.C.Cr.P. art. 707, and we find that the trial court erred to the extent that it quashed the bill of information pursuant to La.C.Cr.P. art. 707. State v. Polk, 2005-1118, pp. 3-4 (La.App. 4 Cir. 5/31/06), 933 So.2d 838, 840-841.

Regarding the issue of the reinstitution of charges, we note that a defendant challenging the State’s dismissal and subsequent reinstitution of charges bears the burden of proving a violation of his constitutional right to a speedy trial. State v. Henderson, 2000-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. A |4court shall evaluate whether a defendant’s constitutional right to a speedy trial has been violated on a case-by-case basis. State v. Batiste, 2005-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249 (citing State v. Love, 2000-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209).

This Court recently revisited the issue of the State’s authority to enter a nolle prosequi and subsequently reinstitute prosecution in State v. Brown, 2005-1090 (La.App. 4 Cir. 3/22/06), 929 So.2d 182. In Brown, this Court reiterated that pursuant to La.C.Cr.P. art. 691, the State has authority to dismiss any prosecution without the consent of the court, and moreover, pursuant to La.C.Cr.P. art. 576, the State is authorized to reinstitute the charges within six months of the dismissal. Brown, 05-1090, p. 3, 929 So.2d at 184.

The United States Supreme Court set forth four factors to be considered by courts when evaluating whether a defendant’s right to a speedy trial has been violated: 1) the length of the delay; 2) the reasons for the delay; 3) the accused’s assertion of his right to a speedy trial; and 4) the prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Additionally, courts must also carefully evaluate whether “the district attorney is flaunting his authority for reasons that show that he wants |Kto favor the State at the expense of the defendant” by causing a defendant to lose evidence or witnesses. Batiste, 05-1571, p. 5, 939 So.2d at 1249 (quoting Love, 00-3347, p. 14, 847 So.2d at 1209).

In this case, the State filed the original bill of information on February 20, 2004. Although fifteen months elapsed between the filing of the original bill of information and the grant of the defendant’s Motion to Quash, a review of the record demonstrates that approximately six months of the delay was attributable to the defendant. The case was dismissed on November 23, 2004, and the State reinstituted the case approximately two weeks later. Pursuant to the guidelines mandated by La. C.Cr.P. art. 578(2), the State did not exceed the two-year deadline from the institution of prosecution in which to bring the defendant to trial in this case. Moreover, it appears the defendant’s first assertion of his right to a speedy trial was the motion to quash the information upon refiling of charges after the initial dismissal.

We do not agree that the State violated the defendant’s constitutional right to a speedy trial by reinstituting the charges in this ease. The first factor mandated by Barker, supra, the length of the delay, is the threshold requirement for any court’s review of a speedy trial claim. Thus, the Louisiana Supreme Court has held that the reviewing court need not consider the remaining Barker factors unless the delay is “presumptively prejudicial,” noting that the particular facts and circumstances of each case will “determine the weight to be ascribed to the length of the delay and the reason for the delay.” Love, 00-3347, p. 16, 847 So.2d at 1210.

Lin this case, approximately fifteen months elapsed between the filing of the bill of information in the original case and the quashing of the bill of information. The record indicates that on at least seven occasions, this case was reset because the defendant either failed to remain in court until his case was called or failed to appear in court at all. Accordingly, we find that the delay in this case was not due to the fault of the State, as the State received only one continuance from the trial court, and the only delay attributable to the State was the two-week period between the dismissal and reinstitution of the charges. Therefore, we find that it is unnecessary to consider the other two Barker factors.

Even if the remaining factors are taken into consideration, however, the State’s actions did not violate the defendant’s constitutional right to a speedy trial. With respect to the remaining Barker factors, there is no indication that the defendant filed a motion for speedy trial in the case, nor any evidence that he objected to the State’s one continuance. Additionally, there has been no allegation of prejudice suffered by the defendant, as he does not contend he has lost evidence or witnesses. Because the particular facts of this case demonstrate no evidence that the defendant’s right to a speedy trial was violated, nor do the facts demonstrate that the district attorney’s office flaunted its authority at the expense of the defendant, this Court must find that the trial court abused its discretion in granting the motion to quash. Accordingly, we remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

      . Defense counsel subsequently supplemented the oral motion with a written motion on May 6, 2005.

      . La.C.Cr.P. art. 532 sets forth the general grounds upon which a motion to quash may be based:
      (1) The indictment fails to charge an offense which is punishable under a valid statute.
      (2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
      3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
      (4)The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
      (5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
      (6) Trial for the offense charged would constitute double jeopardy.
      (7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
      (8) The court has no jurisdiction of the offense charged.
      (9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.

      .Likewise, La.C.Cr.Pr. art. 534 sets forth special grounds upon which a motion to quash may be based:
      (1) The information was not signed by the district attorney; or was not properly filed.
      (2) The offense is not one for which prosecution can be instituted by an information.

      . La.C.Cr.P. art. 691 provides, in pertinent part:
      The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to be entered on the minutes of the court.

      . La.C.Cr.P. art. 576 provides, in pertinent part:
      When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant's consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
      A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

      . La.C.Cr.Pr. art. 578 provides, in pertinent part:
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
      (1)In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.