author: AMY, Judge.

text:
    STATE of Louisiana v. Wayne PRATER.
    No. KA2007-783.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 8, 2007.
    Douglas L. Hebert, Jr., District Attorney, Oberlin, LA, for Appellee, State of Louisiana.
    Wayne Prater, Kinder, LA, pro se.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

On April 12, 2007, the Defendant, Wayne Prater, was found guilty of reckless operation of a vehicle following a bench trial and was sentenced to serve thirty days in the parish jail, suspended, six months supervised probation and ordered to pay restitution as a special condition of probation. The Defendant thereafter orally motioned the trial court for an appeal which was subsequently granted.

On June 25, 2007, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed, as the judgment at issue is not appealable. The Defendant filed a document by the July 16, 2007 deadline, but the document was not in proper form and was returned for an original signature in compliance with the rules of court. The original document with an original signature was received on July 26, 2007. However, the information set forth in the Defendant’s documentation did not provide a legal basis why this appeal should not be dismissed.

The judgment at issue herein is not appealable, pursuant to La.Code Crim.P. art. 912.1, therefore, the appeal in the above-captioned case is hereby dismissed. Wayne Prater, Defendant, is hereby permitted to file a proper application for supervisory writs, in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than thirty days from the date of this decision. The Defendant is not required to file a notice of intent to seek writs or obtain an order setting a return date, pursuant to Uniform Rules — Courts of Appeal, Rule 4 — 3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Frank Bernard CORBIN, Appellant.
    No. 42,384-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Rehearing Denied Sept. 13, 2007.
    Paula C. Marx, Louisiana Appellate Project, for Appellant.
    Robert W. Levy, District Attorney, Laurie Whitten, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

hFrank Bernard Corbin was convicted of DWI, fourth offense in violation of La. R.S. 14:98(E). He received a sentence of 10 years’ imprisonment at hard labor, the first 60 days to be served without the benefit of parole, probation, or suspension of sentence and a fine of $5,000, to run consecutively to the prior sentence imposed for an earlier conviction of DWI, fourth offense. Corbin now appeals his conviction and sentence. We affirm the conviction and amend the sentence to provide that the entire 10-year term is to be served without the benefit of probation, parole or suspension of sentence to run consecutively with the balance of any other sentence imposed for a prior conviction for any offense.

Facts

On July 4, 2004, Corbin rear-ended a vehicle while operating a vehicle without license plates. The force of the impact caused the victim’s car to strike the car ahead of her. Thereafter, the victim saw Corbin, the sole occupant of his vehicle, exit the driver’s side of his vehicle. Cor-bin left the scene of the accident after accusing the victim of being at fault. The victim flagged down a Ruston police officer who pursued and apprehended Corbin immediately. Two officers observed that Cor-bin’s eyes were bloodshot, that he smelled of alcohol and was unsteady on his feet. Corbin denied causing the crash and refused to sign a rights form or take an Intoxilyzer test. He failed all field sobriety tests after admitting that he would do so. Based upon these events, Corbin was arrested and charged with DWI, fourth offense.

1 aCorbin’s predicate offenses listed in the bill of information included a November 20, 1997, guilty plea to DWI, first offense, under Ruston City Court docket number 71,224 (Predicate No. 1); a January 28, 1998, guilty plea to DWI, first offense, under Lincoln Parish docket number 43,-020 (Predicate No. 2); a March 3, 2000, guilty plea to DWI, third offense, under Lincoln Parish docket number 45,719 (Predicate No. 3); and a November 17, 2002, guilty plea to DWI, fourth offense, under Lincoln Parish docket number 49,-021 (Predicate No. 4).

Prior to trial, Corbin sought to quash two of the predicate offenses (Predicate Nos. 1 and 4) on the basis that the guilty pleas upon which those convictions were obtained were not voluntary, intelligent and knowing. The basis for the motion to quash Predicate No. 1 was an exchange that took place during the guilty plea colloquy for that offense which the defendant contends reflected an unsuccessful attempt to invoke the right to counsel.

Corbin’s motion to quash came for hearing on August 22, 2006. The trial court considered the transcript of the November 20, 1997 plea and determined that a valid waiver of counsel had been established by the record. The court denied the motion as to both of the challenged predicate offenses and allowed the state to move ahead to trial with the four predicate offenses listed in the bill of information.

The case proceeded to a bench trial on August 30, 2006. Corbin stipulated that he was the same person convicted in each of the four predicate convictions for which the state introduced certified copies of the Isbills of information, court minutes and guilty plea transcripts. The state and de- • fendant stipulated that the sole issue for the court to determine was whether Cor-bin was driving under the influence of alcohol. Corbin’s counsel also specifically reserved Corbin’s right to appeal the denial of his motion to quash and indicated on the record his agreement with the state that upon Corbin’s conviction for DWI, fourth, the state recommended that the court impose the minimum ten-year sentence with credit for time served.

After all evidence on the present and predicate charges was adduced, the defendant was convicted as charged. Corbin’s probation from his prior conviction for DWI, fourth offense was revoked and the sentence was ordered executed, with credit for time served. Defendant was also sentenced on the present conviction to 10 years at hard labor to be served consecutively to the earlier sentence, with the first 60 days to be served without the benefit of parole, probation, or suspension of sentence. The court also imposed a fine of $5,000.

The defendant now appeals assigning error to the trial court’s denial of his motion to quash the conviction on Predicate No. 1 and to the imposition of the $5,000.00 fine.

Discussion

Corbin argues that his plea to DWI, first offense in Predicate 1 could not be used as a predicate offense because the record reflects that he did not make a voluntary waiver of his right to counsel.

To convict a defendant of DWI, fourth offense, the state must prove that the defendant has had three prior valid convictions, as defined in La. |4R.S. 14:98(F)(1), and that these convictions are not stale under La. R.S. 14:98(F)(2). State v. Benoit, 363 So.2d 656 (La.1978); State v. Pickard, 40,422 (La.App.2d Cir.12/14/05), 918 So.2d 485.

In the present ease, the state submitted evidence of four prior DWI convictions, only three of which must be valid to support the present conviction for DWI, fourth offense. Because all four convictions were obtained within the 10-year time period prior to the present conviction, under La. R.S. 14:98(F)(2), none of the convictions were stale. The present appeal only challenges the trial court’s failure to quash one of these four convictions. Corbin does not argue or cite any authority for the proposition that the state was required to prove this offense as well as the three remaining uncontested predicate offenses in order to obtain a conviction against him for DWI, fourth offense. The above-cited jurisprudence fails to support his claim. Thus, even if Corbin’s contentions regarding Predicate 1 are correct, his conviction would still be valid on the basis of the three remaining uncontested predicates and any error by the trial court would be moot and harmless error.

Corbin also contends that the sentencing provisions applicable to his conviction are found under La. R.S. 14:98(E)(4)(a) and do not authorize the imposition of any fine. Thus, he requests this court to delete the $5,000 fine imposed by the trial court.

At the time of this offense, the applicable penalty provisions for DWI fourth offense under La. R.S. 14:98 provided as follows:

E. (l)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent | ¡¡offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended, and the offender shall be required to under go an evaluation to determine the nature and extent of the offender’s substance abuse disorder.
* * *
(4)(a) If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.
(b) If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

As noted above, the present offense was Corbin’s second conviction for DWI, fourth offense, the first having come in Predicate No. 4. For that prior conviction, defendant was sentenced to 10 years’ imprisonment at hard labor, 60 days to be served without the benefit of probation, parole or suspension of sentence, with the remainder of the sentence suspended, 5 years’ probation and a $5,000 fine. He was also ordered to undergo an evaluation to determine the extent of his substance abuse disorder. Because Corbin previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, the appropriate sentencing provisions are those contained in La. R.S. 14:98(E)(4)(b). The provisions of La. R.S. | fi14:98(E)(4)(a), which do not specifically address the present situation for one previously convicted of DWI, fourth offense, are not applicable. Subsection (E)(4)(b) provides no sentencing range (minimum or maximum), and simply provides that whatever the sentence, it is to be served without benefits and consecutive to any other sentences. Thus, it must be read in conjunction with La. R.S. 14:98(E)(1) which provides the sentencing range and mandates the imposition of a $5,000 fine. See State v. Jones, 41,242 (La.App.2d Cir.8/23/06), 938 So.2d 1080, which determined that the minimum sentence which could be imposed under La. R.S. 14:98(E)(4)(b) is “ten years at hard labor without the benefit of parole, probation, or suspension of sentence and a fine of $5,000.00, to run consecutively with the balance of any other sentence imposed for a prior conviction for any offense.” On these grounds, Corbin’s argument has no merit.

On error patent review, we note that the sentence imposed by the court is illegally lenient. La. R.S. 14:98(E)(4)(b) provides that when the defendant previously received a suspended sentence for DWI, fourth offense, the trial court cannot order that any portion of the present sentence be served with benefit of parole, probation, or suspension of sentence and that the sentence must be served consecutively with the balance of any other sentence imposed for a prior conviction for any offense. Under the | circumstances of this case, the minimum sentence that could have been imposed by the trial court was 10 years at hard labor without benefit of parole, probation, or suspension of sentence and a fine of $5000, to run consecutively with the balance of any other sentence imposed for a prior conviction for any offense. See State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Jones, supra. Accordingly, the sentence is amended to provide that the entire 10-year hard labor sentence is to be served without probation, parole, or suspension of sentence and to run consecutively with the balance of any other sentence imposed for a prior conviction for any offense.

Conclusion

Corbin’s conviction is affirmed. His sentence is amended to provide that the entire 10-year hard labor sentence be served without probation, parole, or suspension of sentence and consecutively with the balance of any other sentence imposed for a prior conviction for any offense.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND, AS AMENDED AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . Corbin did not appeal the denial of the motion to quash Predicate No. 4.

      . Corbin does not argue that the $5,000 fine imposed by the trial court went beyond the terms of the sentence agreement which included the state's recommendation that Cor-bin receive the minimum ten-year sentence. The trial judge retained the discretion to impose the mandatory fine because the state recommendation was not part of a plea agreement to which the trial court agreed. Even in plea agreements, the jurisprudence has ruled that the sentencing function remains exclusively within the province of the trial court’s authority. State v. Terrebonne, 01-2632 (La. App. 1st Cir.6/21/02), 822 So.2d 149. That conclusion is all the more applicable when the sentence agreement is not part of a plea agreement.


author: GASKINS, J.

text:
    Claude PRINE, et al., Plaintiffs-Applicants v. Donovan W. BAILEY, M.D., Defendant-Respondent.
    No. 42,282-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Nelson & Hammons, by Cornell Flour-noy John L. Hammons, Shreveport, for Applicants.
    McNew, King, Mills, Burch & Landry, by Brady D. King, II, for Respondent.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

pThe plaintiffs filed a writ application objecting to a trial court judgment granting a motion to compel discovery of their medical records in this wrongful death and survival action arising from the death of the plaintiffs’ wife and mother. This court granted the writ application and docketed the matter for decision. For the following reasons, we affirm in part and reverse in part the trial court judgment and remand for further proceedings.

FACTS

The plaintiffs in this case are Claude Prine, the husband of the decedent, Mary Prine, and their two adult children, Toni Prine Shumate and David Prine. The plaintiffs allege that the defendant, Dr. Donovan W. Bailey, was Mary’s primary care physician and that he breached the standard of care by failing to recommend colorectal cancer screening for her when she reached age 50. In June 2001, Mary died of complications of colon cancer at the age of 58. After submitting the claim to a medical review panel, the plaintiffs filed this wrongful death and survival action on September 16, 2005. They sought damages for Mary’s physical pain and suffering, mental anguish and distress, residual disability, substantial medical bills, fear, loss of the quality of life, loss of society with her family, loss of the opportunity to have avoided the development of colorectal cancer, and ultimately, death.

The plaintiffs also claimed that they suffered the tragic loss of their wife and mother, loss of love and affection, loss of society, grief, mental anguish, medical bills and funeral expenses.

| gDuring the course of discovery, an issue developed as to whether Dr. Bailey was Mary’s primary care physician. Deposition testimony indicated that, if Dr. Bailey was Mary’s primary care physician, he had a duty to recommend colorectal cancer screening for her at age 50. The defendant denies that he was Mary’s primary care physician. The plaintiffs represented that the whole family saw Dr. Bailey for medical treatment and considered him to be their primary care physician. Therefore, they contended that Mary must also have considered Dr. Bailey tó be her primary care physician.

In November 2006, the defendant filed a motion to compel discovery of all of the plaintiffs’ medical records. Dr. Bailey argued that, since the plaintiffs raised the issue of whether he was Mary’s primary care physician and the plaintiffs had stated that they considered him to fulfill that function for them, their medical records would be probative of that issue. According to Dr. Bailey, the medical records are necessary to show whether some other doctor was actually the primary care physician, with the duty to recommend colo-rectal screening for Mary.

Dr. Bailey also urged that since the plaintiffs claimed mental anguish, the medical records were necessary to show whether they suffered any damages as a result of Mary’s death. Dr. Bailey maintained that the trial court should either allow discovery or preclude the plaintiffs from attempting to introduce evidence of opinions, thoughts, or feelings concerning their relationship with him and discussion of their treatment by him.

|3The plaintiffs did not object to discovery of Mary’s medical records. However, they filed an opposition to the motion to compel discovery, asserting that Dr. Bailey wanted the entirety of their medical records for a fishing expedition which had nothing to do with whether he breached the applicable standard of care for Mary. The plaintiffs argued that their action for wrongful death does not allow the defendant access to their confidential medical records.

The plaintiffs specifically objected to the following interrogatories and requests for production of documents:

Interrogatory No. 13:
State the name, address and the specialty or area of practice of each physician, chiropractor, physical therapist, nurse, mental health care provider or any other health care provider which has examined or treated you for any reason at any time. For each person identified, please specify the dates or periods of treatment, the reason for treatment, and outcome.
Interrogatory No. II:
State the name and address of all hospitals, clinics, or other health care institutions to which you have been admitted or received health care from at any time for any reason.
Request for Production No. 2.
Produce any and all medical reports, records, bills, x-rays, diagnostic test results, documents, or tangible items concerning or touching upon any health care provider identified in your answer to Interrogatories Number 13 and 14. Request for Production No. 3.
Execute the attached Medical Authorization attached hereto for each health care provider identified in your answer to Interrogatories No. 13 and 14.
\ ¿Interrogatory No. 15.
Describe in detail any and all mental, emotional, bodily or physical injuries or damages you contend were caused by the alleged medical negligence or malpractice forming the basis of this lawsuit.

A hearing on the motion to compel was held on January 8, 2007. Counsel for Dr. Bailey urged that while the standard of care requires that a primary care physician order colorectal screening when a patient reaches the age of 50, if Dr. Bailey was not Mary’s primary care physician, he had no such obligation. Dr. Bailey’s lawyer explained that he had not filed a motion in limine to stop the plaintiffs from testifying that Dr. Bailey was their primary care physician, but said that some of his concerns would be alleviated if the plaintiffs were not permitted to testify about that issue. Dr. Bailey also argued that he should be able to have the medical records to test the assertions made by the plaintiffs in their depositions regarding their professional relationship with him and to determine what mental anguish damages they had suffered.

At the close of the hearing, the trial court granted the motion to compel, stating that:

My gut reaction is that the perception of the other family members is irrelevant as to whether or not Dr. Bailey was Mrs. Prine’s family physician. However, I see from the way this case is developing that it is possible that it may be relevant and if so, then the information that you are trying to get through discovery, in my opinion, is discoverable. I think that there are safeguards that can be put in place to protect the privacy of the other family members and if you all cannot work that out between yourselves, then I will be glad to help you do it. But, for the — I also noted when I was preparing for this that there was no argument as to the emotional distress that they have | r,claimed, how that would be perceived as far as your right to discover their medical records. I think that is an issue that needs to be addressed and certainly, any medical information relative to their, any treatment that they received for emotional distress that they are claiming, that certainly is discoverable. So I am going to grant your motion to compel.

The plaintiffs filed a writ application with this court. On March 2, 2007, this court granted the writ application, stayed the order to compel discovery, and docketed the matter for decision.

DISCOVERY OF PLAINTIFFS’ MEDICAL RECORDS

According to Dr. Bailey, there is a dispute as to whether he was the primary care physician for the plaintiffs and the decedent and whether his care caused harm that otherwise would not have occurred. Also at issue is whether the plaintiffs suffered emotional distress as a result of Dr. Bailey’s care, and if they have, the extent of their harm and injuries. Dr. Bailey states that the interrogatories requesting the plaintiffs’ medical records were directed at determining whether he was, in fact, their primary care physician and the nature and extent of any mental, emotional, bodily or physical injuries which the plaintiffs contend were the result of the alleged malpractice.

The plaintiffs do not object to discovery of the medical records of the decedent. They do object to discovery of the personal medical records and history of the widower and adult children of the decedent. According to the plaintiffs, the only issue in this matter is whether Dr. Bailey had a duty to recommend colorectal screening to Mary when she reached the age of 50. The plaintiffs urge that they are not alleging that Dr. Bailey’s care and treatment of Claude or his adult children caused or contributed to the ^damages suffered by Mary. The plaintiffs contend that their medical records are privileged and confidential and not relevant to the determination of the standard of care owed by Dr. Bailey to Mary.

The plaintiffs point out that Claude and Toni had been deposed. They did not claim that Dr. Bailey was their only physician, just that he is their primary care physician. They maintain that the substantive medical records of anyone other than Mary are not relevant, material, or discoverable.

Legal Principles

The general scope of discovery is found in La. C.C.P. art. 1422, which provides in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

In order to obtain discovery of medical records, a party must comply with La. C.G.P. art. 1465.1, which states in pertinent part:

A. Any party may serve upon the plaintiff or upon any other party whose medical records are relevant to an issue in the case a request that the plaintiff or other authorized person sign a medical records release authorizing the health care provider to release to the requesting party the medical records of the party whose medical condition is at issue. The release shall be directed to a specific health care provider, shall authorize the release of medical records only, and shall state that the release does not authorize verbal communications by the health care provider to the requesting party.

^Regarding the duty of a health care provider to respond to a request for medical records, La. R.S. 13:3715.1 provides in pertinent part:

B. The exclusive method by which medical, hospital, or other records relating to a person’s medical treatment, history, or condition may be obtained or disclosed by a health care provider, shall be pursuant to and in accordance with the provisions of R.S. 40:1299.96 or Code of Evidence Article 510, or a lawful subpoena or court order obtained in the following manner:
(1) A health care provider shall disclose records of a patient who is a party to litigation pursuant to a subpoena issued in that litigation, whether for purposes of deposition or for trial and whether issued in a civil, criminal, workers’ compensation, or other proceeding, but only if: the health care provider has received an affidavit of the party or the party’s attorney at whose request the subpoena has been issued that attests to the fact that such subpoena is for the records of a party to the litigation and that notice of the subpoena has been mailed by registered or certified mail to the patient whose records are sought, or, if represented, to his counsel of record, at least seven days prior to the issuance of the subpoena; and the subpoena is served on the health care provider at least seven days prior to the date on which the records are to be disclosed, and the health care provider has not received a copy of a petition or motion indicating that the patient has taken legal action to restrain the release of the records. If the requesting party is the patient or, if represented, the attorney for the patient, the affidavit shall state that the patient authorizes the release of the records pursuant to the subpoena. No such subpoena shall be issued by any clerk unless the required affidavit is included with the request.
(5) A court shall issue an order for the production and disclosure of a patient’s records, regardless of whether the patient is a party to the litigation, only: after a contradictory hearing with the patient, or, if represented, with his counsel of record, or, if deceased, with those persons identified in Paragraph (3) hereof, and after a finding by the court that the release of the requested information is proper; or with consent of the patient.
| sMedical records are generally privileged. La. C.E. art. 510 sets forth not only the privilege, but also certain exceptions. That statute provides in pertinent part:
B. (1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.
(2) Exceptions. There is no privilege under this Article in a noncriminal proceeding as to a communication:
(a) When the communication relates to the health condition of a patient who brings or asserts a personal injury claim in a judicial or worker’s compensation proceeding.
(c) When the communication is relevant to an issue of the health condition of the patient in any proceeding in which the patient is a party and relies upon the condition as an element of his claim or defense or, after the patient’s death, in any proceeding in which a party deriving his right from the patient relies on the patient’s health condition as an element of his claim or defense.
(j) When disclosure of the communication is necessary for the defense of the health care provider in a malpractice action brought by the patient.
F. Medical malpractice. (1) There shall be no health care provider-patient privilege in medical malpractice claims as defined in R.S. 40:1299.41 et seq. as to information directly and specifically related to the factual issues pertaining to the liability of a health care provider who is a named party in a pending lawsuit or medical review panel proceeding. |fl(2) In medical malpractice claims information about a patient’s current treatment or physical condition may only be disclosed pursuant to testimony at trial, pursuant to one of the discovery methods authorized by Code of Civil Procedure Article 1421 et seq., pursuant to R.S. 40:1299.96 or R.S. 13:3715.1.

The principal purpose of the health care provider-patient privilege is to encourage full disclosure by the patient of his or her condition in order to ensure proper diagnosis and treatment. Moss v. State, 2005-1963 (La.4/4/06), 925 So.2d 1185. The privilege seeks to secure the patient from disclosure, in court, of potentially humiliating, embarrassing or disgraceful information, or information that could be the basis for the patient’s legal liability. Another rationale for the privilege is the recognition of a patient’s interest in the privacy of therapeutic matters. Moss v. State, supra.

The patient for whom protection was intended by La. C.E. art. 510 is a person in need of medical care who might otherwise withhold relevant information for fear that it may later embarrass him or her or be used against the individual in legal proceedings. By definition, a “confidential communication” includes medical records generated in the course of obtaining advice, diagnosis, or treatment with respect to a particular health condition. La. C.E. art. 510(A)(8)(b). The privilege extended by the article may be claimed by the patient or by his or her legal representative. La. C.E. art. 510(D). Moss v. State, supra.

The rule barring discovery of disclosures to health care providers is not a rule of incompetency of evidence, which serves the end of protecting an adverse party against unreliable or prejudicial testimony. It is a rule of 11flprivilege protecting the extrinsic interest of the patient and designed to promote health, not truth. As a privilege that benefits the patient, the privilege bestowed by La. C.E. art. 510 may be waived by the patient (or the individual to whom the privilege applies.) This waiver may be express or implied. Moss v. State, supra.

In Moss v. State, supra, the Louisiana Supreme Court considered whether a health care provider could be compelled to disclose the medical records of a nonparty to a lawsuit. The court construed La. R.S. 13:3715.1, and found that the trial court should have held a contradictory hearing to decide whether disclosure was proper on a case by case basis. Because the present case does not deal with introduction of medical records of nonparties, Moss v. State, supra, is not directly on point. However, it does provide insight and guidance into the disposition of the present case. Basically, as in Moss v. State, supra, the matter currently before the court involves a consideration of the proper scope of discovery to be allowed. This requires a balancing of the protection of the privacy interests of the plaintiffs with the defendant’s ability to defend against the malpractice charges.

In the Moss case, the supreme court was also faced with balancing the various interests involved. The court observed that the balancing of interests is not a unique task for a court, which engages in similar exercises in the context of determining whether otherwise relevant evidence should be ^excluded because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. La. C.E. art. 403. The task involves recognizing and balancing competing interests: those protected by shielding the evidence sought with those advanced by disclosure. Moss v. State, supra.

The Moss court noted that each case must be resolved on its own facts. Nevertheless, there are guidelines the courts should follow in assessing the propriety of disclosure in any particular case. In light of the significant policy reasons supporting the legislatively established health care provider-patient privilege and the constitutional dimensions of the privacy expectations protected thereby, the burden is on the party seeking to overcome the privilege to establish the propriety of disclosure. In light of those same considerations, the privilege should not be subject to casual breach by every litigant in single-minded pursuit of the last piece of evidence which may marginally contribute to his or her case. There should be a substantial showing of relevance and need, ie., lack of ability to obtain evidence elsewhere, by the party seeking disclosure. Further, any exception to the privilege should be narrowly tailored and should extend only to information necessary and relevant to the condition relied on as a defense or claim. In other words, it is “proper” to disregard the privilege only to the limited extent necessary to access information which is directly related to determining the truth. Following these guidelines, the courts can ensure h^that both the privacy interests of the patient and the due process rights of the litigant seeking disclosure are respected. Moss v. State, supra.

Discussion

The defendant has asked for all information regarding medical reports, records, bills, x-rays, diagnostic test results, documents, or tangible items touching upon consultations with any health care provider who has treated any of the plaintiffs for any reason at any time. Such a request is overly broad and will undoubtedly retrieve information completely irrelevant to the plaintiffs’ claims. Such a request could conceivably result in production of records dealing with a tonsillectomy 30 years ago. This information would have no relevance to the issues presently before the court.

In such matters, the trial court may limit the scope of discovery. La. C.C.P. art. 1426 provides:

A. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had.
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place.
(8) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery. (4) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.

| ^.Certainly this case demands extensive pruning of the discovery tree whose branches, at present, encroach into irrelevant areas. The trial court recommended to the parties that they might work together to limit the scope of discovery and offered to provide guidance in that exercise. Apparently, the parties did not reach a compromise. The trial court then signed an order granting the defendant’s motion to compel and the plaintiffs were ordered to respond to the defendant’s interrogatories and request for production of documents without any limitations. As a result, the plaintiffs filed the present writ application. Therefore, this court must now limit discovery, balancing the privacy interests of the plaintiffs and the due process rights of the defendant.

In the present case, some of the plaintiffs’ medical records are subject to exceptions to the privilege found in La. C.E. art. 510. By claiming mental anguish damages resulting from the loss of the decedent, the plaintiffs rely upon their mental conditions as part of their claims. Records of mental health treatment by mental health care professionals, such as psychiatrists and psychologists, are discoverable for defense against an element of the plaintiffs’ claims. The defendant may also obtain discovery of the records of any health care provider who treated or prescribed medication to the plaintiffs for mental health issues such as depression and anxiety. However, discovery is limited to records pertaining to mental health issues.

Another issue raised in this matter is whether Dr. Bailey was the primary care physician for the decedent. The plaintiffs claim that their | uentire family viewed Dr. Bailey to be the primary care physician for their family. Therefore, they contend that Mary, the decedent, must also have viewed him as her primary care physician. This argument is tenuous at best. If the plaintiffs continue to assert this argument, then their treatment history is discoverable, in part.

In order to protect the plaintiffs’ privacy and to also allow the defendant discovery of information which is relevant, we limit discovery on the primary care physician issue. For those years in which the decedent was 45 years old until her death, the plaintiffs shall furnish to the defendant a list of their health care providers, dates of treatment, and a general description of the treatment. The defendant is not entitled to wholesale discovery of these medical records. If it appears from this information that another physician was probably the primary care physician for any of the plaintiffs, discovery shall be limited to that physician’s records for the time periods noted above. We observe that the best evidence of whether the family considered Dr. Bailey to be their primary care physician would be Dr. Bailey’s own records.

CONCLUSION

For the reasons stated above, we affirm in part and reverse in part the ruling of the trial court allowing the defendant, Dr. Donovan W. Bailey, unlimited discovery of the entirety of the plaintiffs’ medical records. The defendant’s request for answers to interrogatories and for production of documents will be limited according to the provisions set forth above. The case is therefore remanded to the trial court for further proceedings 11ficonsistent with this opinion. Costs in this court are assessed one-half to the plaintiffs and one-half to the defendant.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      . The defendant recognizes that the plaintiffs have responded to Interrogatory No. 15 and he does not seek supplementation of that response.


author: SAUNDERS, Judge.

text:
    Jerry WILLIAMSON v. DRESSER, INC. d/b/a Dresser Valve Division.
    No. 07-672.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 15, 2007.
    Roy Seale Halcomb, Jr., Broussard, Bolton, Halcomb, Alexandria, LA, for Plaintiff/Appellant Jerry Williamson.
    Mark Alan Watson, Stafford, Stewart, & Potter, Alexandria, LA, for Defendants/Appellees Dresser, Inc. Liberty Mutual Insurance Company.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION Judges.
   SAUNDERS, Judge.

11 This court, sua sponte, issued a rule for the plaintiff-appellant, Jerry Williamson, to show cause, by brief only, why the appeal in the above captioned case should not be dismissed as having been taken from a non-appealable, interlocutory order. For the reasons given below, we dismiss the appeal.

During the instant workers’ compensation litigation, the parties to this action entered into settlement negotiations. The plaintiff avers that the parties reached an agreement of settlement. However, the plaintiff claims that before the settlement was submitted to the workers’ compensation judge for approval, the defendants-appellees, Dresser, Inc., and Liberty Mutual Insurance Company, attempted to withdraw their approval of the settlement.

The plaintiff persisted in attempting to enforce the settlement and filed a motion with the workers’ compensation court seeking such relief. Following a hearing on the matter, the trial court denied the plaintiff’s motion, thereby refusing to enforce the purported agreement. The trial court signed a judgment denying the motion, but also ordered that this partial judgment be designated as immediately appealable pursuant to La.Code Civ.P. art. 1915(B).

The plaintiff then filed a motion and order seeking an appeal from this judgment. The trial court signed the order of appeal, and the record in this case was lodged in this court. Upon the lodging of the record, this court issued the instant rule for the plaintiff to show cause why the appeal should not be dismissed as having been taken from a non-appealable, interlocutory order. The plaintiff has filed a brief in response to this court’s rule.

| ¡/The plaintiff argues that due to the nature of the judgment refusing to enforce the purported settlement, this court should conclude that the trial court’s ruling is a partial, final judgment which has been properly designated as appealable pursuant to La.Code Civ.P. art.1915. The plaintiff does not challenge whether the particular judgment is a partial judgment. Rather, recognizing that the judgment is partial, the plaintiff contends that the trial court’s reasons for designating this judgment as immediately appealable are sound and should be upheld by this court. Therefore, the plaintiff asks that this court recall its rule to show cause why the appeal should not be dismissed and maintain the appeal.

This court pretermits any consideration as to whether the denial of a motion to enforce the settlement is, in fact, an ap-pealable judgment when the underlying action will continue. Instead, we find that the appeal in this case must be dismissed because La.Code Civ.P. art.1915 has been held to be inapplicable to workers’ compensation-cases.

Thus, in Rhodes v. Lewis, 2001-1989 (La.5/14/02), 817 So.2d 64, the supreme court held that La.Code Civ.P. art. 1915(A)(1) and (5) were inapplicable to workers’ compensation suits. In that instance, two of three defendants had been dismissed from the suit. Even at the risk of having trial against less than all parties who might ultimately be held answerable, the supreme court declined to sanction the use of Article 1915 in workers’ compensation actions.

Likewise, this court in Evergreen Presbyterian Minist. v. Wallace, 2005-1348 (La.App. 3 Cir. 4/5/06), 926 So.2d 759, ordered the dismissal of appeals which had been filed by both sides. In dismissing the appeals from rulings that | -¡the claimant was entitled to supplemental earnings benefits, but that the claimant was not temporarily and totally disabled nor totally and permanently disabled, as well as other rulings deciding other issues in the case, this court stated:

The law is clear, and we are bound to follow the supreme court’s dictates, that a piecemeal appeal is not permissible in a workers’ compensation case. The judgment of the Office of Workers’ Compensation clearly establishes that issue of penalties and attorney fees is yet to be decided by it. As the second circuit noted in Gajeske v. Integrated Electrical Services, Inc., 87,777 (La.App. 2 Cir. 10/29/03), 859 So.2d 896, in footnote four (iciting Rhodes, 817 So.2d 64), a piecemeal appeal is not permissible when there are still issues involving penalties and attorney fees yet to determined. Until all issues have been decided in this case, this appeal is premature.

Evergreen Presbyterian Minist., 926 So.2d at 763. Accordingly, we hereby dismiss the instant appeal at plaintiffs cost.

In the brief in response to this court’s rule to show cause, the plaintiff asks for the alternative relief that this court convert the appeal into a writ application since the motion for appeal was filed within thirty days of the trial court’s ruling. We find that justice mediates toward affording the plaintiff time within which to perfect a proper writ application from the trial court’s ruling. Accordingly, we hereby order that the defendant be permitted to file a writ application in compliance with Uniform Rules — Courts of Appeal, Rule 4, seeking review of the subject judgment no later than (thirty days from the decision). The plaintiff is not required to file a notice of intent to seek writs nor to obtain an order setting a return date pursuant to Uniform Rules — Courts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ. However, a copy of this court’s opinion herein should be attached as an exhibit to the writ application, if filed.

14 APPEAL DISMISSED. PLAINTIFF PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRIT NO LATER THAN SEPTEMBER 13, 2007.


author: GENOVESE, Judge. EZELL, J.,

text:
    MOON VENTURES, L.L.C., et al. v. KPMG, L.L.P., et al.
    No. 06-1520.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 15, 2007.

      Joseph R. Joy, III, Joseph Joy & Associates, Lafayette, Louisiana, for Plaintiffs/Appellants, Moon Ventures, L.L.C., Bankruptcy Estate of Moon Ventures, L.L.C., Rudy 0. Young, Chapter 7 Trustee of the Bankruptcy, Estate of Moon Ventures, L.L.C.
    Oscar E. Reed, Jr., LaBorde Law Firm, Lafayette, Louisiana, for Plaintiff/Appellant, Moon Ventures, L.L.C.
    Luke Motley, IV, Sanders, O’Hanlon & Motley, P.L.L.C., Sherman, Texas, for Plaintiffs/Appellants, Moon Exploration, L.L.C., Mark H. Massey.
    John Gregory Odom, Charles F. Zimmer II, John Alden Meade, Odom & Des Roch-es, L.L.P., New Orleans, Louisiana, Paul J. Hebert, Mark D. Sikes, Ottinger, Hebert, Sikes & Hebert, L.L.C., Lafayette, Louisiana, for Defendants/Appellees, KPMG, L.L.P., J. Mark Garrett.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, JIMMIE C. PETERS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11Plaintiffs, Moon Ventures, L.L.C.; Mr. Rudy O. Young, Chapter 7 Trustee of the bankruptcy estate of Moon Ventures, L.L.C.; the bankruptcy estate of Moon Ventures, L.L.C.; Moon Exploration, L.L.C.; and Mark Massey (Plaintiffs will hereafter be referred to collectively as Moon Ventures), appeal the trial court’s judgment sustaining the peremptory exception filed by Defendants, KPMG, L.L.C. and its employee, J. Mark Garrett (KPMG), dismissing Moon Ventures’s claims against KPMG. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

In March of 1998, Moon Ventures entered into negotiations to purchase the assets of Nautica Marine Services, L.L.C. (Nautica). Moon Ventures hired KPMG to provide accounting services to assist them in the evaluation of Nautica’s assets. KPMG was to confirm all of Nautica’s accounts receivable valued over $10,000. KPMG drafted confirmation letters to the companies Nautica listed as owing Nautica money on those accounts receivable. KPMG tendered a draft report to Moon Ventures in July of 1998 stating that the “results of the confirmations were pending.” Moon Ventures alleges that KPMG failed to confirm the accounts receivable prior to the purchase of Nautica in September of 1998. Moon Ventures claims that it was unable to collect on the accounts due to claims of breach against Náutica and that KPMG was negligent in failing to discover these claims prior to Moon Ventures’s purchase of Nautica. Moon Ventures filed a lawsuit against KPMG in April of 1999, alleging economic loss and general damages due to the negligent accounting practices of KPMG. KPMG answered the lawsuit, asserting several affirmative defenses; however, KPMG did not file a dilatory exception of prematurity, and the matter was | ¡¡never presented to a public accountant review panel as required by La.R.S. 37:105.

On June 13, 2005, over six years after suit was filed, and after sporadic discovery and litigation, KPMG filed a “Peremptory Exception of Peremption pursuant to La. R.S. 9:5604 and the Louisiana Accountancy Act.” In its exception, KPMG asserted that “[t]o date, almost seven years since this lawsuit was filed, the Plaintiffs have never requested review by the requisite accounting review panel.” KPMG argued that the Moon Ventures lawsuit had perempted because of its failure to first present its claims to a review panel as required by La.R.S. 37:105. Moon Ventures argued that KPMG waived its right to claim that the lawsuit was premature when it answered the lawsuit and participated in discovery without filing a dilatory exception of prematurity prior to filing its answer. Further, Moon Ventures argued that the timely filing of its petition negated the peremptive time period set forth in La. R.S. 9:5604.

The trial court granted KPMG’s exception and dismissed the claims of Moon Ventures with prejudice. Moon Ventures appeals.

ASSIGNMENTS OF ERROR

Moon Ventures appeals the judgment of the trial court, asserting three assignments of error:

1. The trial court erred in holding that KPMG did not waive its right to claim the suit as premature when it answered the lawsuit without asserting a prematurity exception, as a dilatory exception of prematurity is the proper procedural mechanism for challenging a claim brought in district court prior to filing with the accounting review panel.
2. The trial court erred in holding that Plaintiffs claims were perempted pursuant to La.R.S. 9:5604 and the Louisiana Accountancy Act [La.R.S. 37:71, et seq.].
3. The trial court erred in holding that the review panel provisions of the Louisiana Accountancy Act were constitutional.

| ..¡Because the first two assignments of error are so closely related in this matter, we shall address them together. Because the constitutionality of the Louisiana Accountancy Act was not properly raised or ruled on in the trial court below, nor did Defendants alert the attorney general that the constitutionality of the act was under attack as required by law, we need not and do not address the third assignment of error relative to the constitutionality of the Louisiana Accountancy Act.

STANDARD OF REVIEW

The issue before this court is whether the Moon Ventures lawsuit, which was filed within one year of the alleged negligence, has perempted, considering the time constraints imposed by La.R.S. 9:5604 and the fact that its claims were not presented to a public accountancy review panel pursuant to the mandates of La.R.S. 37:102. This issue involves a question of law. Questions of law are reviewed under the de novo standard of review. Louisiana Mun. Ass’n v. State, 04-227 (La.1/19/05), 893 So.2d 809. Therefore, we must determine whether the ruling of the trial court was legally correct. City of New Orleans v. Board of Comm’r of Orleans Levee Dist., 93-690 (La.7/5/94), 640 So.2d 237.

DISCUSSION

This case involves the application of La. R.S. 9:5604, as well as the “Louisiana Accountancy Act” found in Title 37 of the Louisiana Revised Statutes. Louisiana Revised Statutes 9:5604, which contains the time limitations applicable to actions concerning professional accounting liability, provides, in pertinent part:

A. No action for damages against any accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based upon |4tort, or breach of contract, or otherwise, arising out of an engagement to provide professional accounting service shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred.... The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

Louisiana Revised Statutes 37:102 provides, in pertinent part:

A. All claims against certified public accountants or firms, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a public accountant review panel established pursuant to R.S. 37:109.
B. Review of a claim by a public accountant review panel shall not take place unless, within the time limitations provided for in R.S. 9:5604, a claimant files with the society a written request for review of the claim and pays to the society a one hundred dollar filing fee to defray the society’s administrative costs incurred in performing the duties imposed on it by this Part.

Louisiana Revised Statutes 37:105, as it existed at the time of the filing of the Moon Ventures lawsuit, provides, in pertinent part:

A. Except as provided in this Part, no action against a certified public accountant or firm or his insurer may be commenced in any court before the claimant’s request for review has been presented to a public accountant review panel established pursuant to this Part and the panel has issued a written opinion.

In the same year that the legislature enacted La.R.S. 37:102 and La.R.S. 37:105, it enacted La.R.S. 37:125 (repealed in 2006), which provides:

A claimant’s filing with the society of a written request for review and paying to the society of the one hundred dollar filing fee in accordance with R.S. 37:102(B) shall be deemed that claimant’s exercise of his right to seek judicial cognizance of the claim or claims described in the written request for review for purposes of R.S. 9:5604_

|KAs set forth in Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 04-1227, pp. 11-12, (La.App. 1 Cir. 6/10/05), 916 So.2d 252, 258-59 (footnotes omitted):

The time periods that govern actions for professional accountant liability are set forth in LSA-R.S. 9:5604 and are peremptive. Thus, if the right to bring such a claim is not exercised within those time periods, the claim is extinguished. See LSA-C.C. art. 3468. Overlaid on the requirements of LSA-R.S. 9:5604 are those set forth in Title 37 relative to review panels. Applying principles of statutory construction to harmonize the applicable statutes, we turn to LSA-R.S. 37:125. Therein, the legislature explicitly provided that a claimant is deemed to have exercised its right to bring a claim for professional accountant liability and prevents the extinguishing effect of peremption when it files a request for review by a review panel. Thus, we interpret the applicable statutes to provide that peremption under LSA-R.S. 9:5604 is avoided when a claimant files a request for review of its claim of professional accounting liability within one year of the negligent act, or one year of discovering the negligent act, but not more than three years after the negligent act. See LSA-R.S. 9:5604; LSA-R.S. 37:102; LSA-R.S. 37:125.

Moon Ventures argues that the review panel requirement and KPMG’s right to assert peremption were waived due to KPMG’s failure to file an exception of prematurity. In support of its contention, Moon Ventures cites Solow v. Heard, McElroy & Vestel, L.L.C., 05-1028, pp. 4-5, (La.App. 4 Cir. 4/12/06), 937 So.2d 875, 878, writ denied, 06-1680 (La.10/6/06), 938 So.2d 80, which states that “[t]he jurisprudence has recognized that the parties may waive the [review] panel by failing to assert a dilatory exception of prematurity timely as required by La. C.C. P. art. 926(B), which states ‘[a]ll objections which may be raised through the dilatory exception are waived unless pleaded therein.’ ” (Second alteration in original). The Solow court cites Saia v. Asher, 01-1038 (La.App. 1 Cir. 7/10/02), 825 So.2d 1257, for this premise. The pertinent language in Saia states that:

La. R.S. 40:1299.39.1 provides a similar provision for any claims against a state health care provider in that they must be brought before a medical review panel before suit may be commenced in a court. This court and the Louisiana Supreme Court have held the dilatory exception of prematurity is the | (¡proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. See Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119. La C.C.P. art. 926(B) states, “All objections which may be raised through the dilatory exception are waived unless pleaded therein.” The parties have not raised this objection and it is waived.

Id. at 1259, fn. 3.

KPMG argues that while it may have waived the right to assert a dilatory exception of prematurity, it did not waive the right to the review panel, which may only be waived “[b]y written agreement of both parties.” La.R.S. 37:107. KPMG cites La.Civ.Code art. 3461, which states “[pjeremption may not be renounced, interrupted, or suspended.” Finally, KPMG contends that it did not waive the right to assert an exception of peremption, which may be raised by a party or by a court “at any time prior to final judgment.” La.Civ. Code art. 3460.

The issue before us is not whether per-emption has run, but whether KPMG waived its right to require that the matter be presented to the review panel. It is undisputed that Moon Ventures filed its claim in a court of competent jurisdiction within one year of the alleged negligence as required by La.R.S. 9:5604. It is likewise undisputed that KPMG failed to timely file an exception of prematurity in accordance with La.Code Civ.P. arts. 926 and 928. Consequently, we find that KPMG has waived its right to require that the matter be presented to a review panel when it filed not only one but two answers in this litigation and participated in discovery without timely filing a dilatory exception of prematurity. KPMG’s peremption defense lacks merit.

DECREE

For the above reasons, we find the ruling of the trial court sustaining KPMG’s | exception of peremption and dismissing the claims of Moon Ventures to be legally incorrect. Therefore, the judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed against Defendants, KPMG, L.L.C. and J. Mark Garrett.

REVERSED AND REMANDED.

EZELL, J. dissents and assigns written reasons.

EZELL, J.,

dissenting.

hi respectfully disagree with the majority opinion and, for the following reasons, would affirm the decision of the trial court.

The majority correctly notes that this case involves application of La.R.S. 9:5604 as well as legislative enactments found in Title 37 of the Revised Statutes, or the “Louisiana Accountancy Act.” However, I disagree with the conclusion reached as a result of their interpretation of these statutes. Louisiana Revised Statute 9:5604, which contains the time limitations applicable to actions concerning professional accounting liability, provides in pertinent part:

A. No action for damages against any accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide professional accounting service shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred .... The one-year and three-year periods of limitation provided in Subsection A of this Section are per-emptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

12Louisiana Revised Statute 37:102 provides, in pertinent part:

A. All claims against certified public accountants or firms, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a public accountant review panel established pursuant to R.S. 37:109.
B. Review of a claim by a public accountant review panel shall not take place unless, within the time limitations provided for in R.S. 9:5604, a claimant files with the society a written request for review of the claim and pays to the society a one hundred dollar filing fee to defray the society’s administrative costs incurred in performing the duties imposed on it by this Part.

Louisiana Revised Statute 37:105, as it existed at the time of filing, provides:

A. Except as provided in this Part, no action against a certified public accountant or firm or his insurer may be commenced in any court before the claimant’s request for review has been presented to a public accountant review panel established pursuant to this Part and the panel has issued a written opinion.

In the same year that the legislature enacted La.R.S. 37:102 and La.R.S. 37:105, it enacted La.R.S. 37:125, which provides:

A claimant’s filing with the society of a written request for review and paying to the society of the one hundred dollar filing fee in accordance with R.S. 37:102(B) shall be deemed that claimant’s exercise of his right to seek judicial cognizance of the claim or claims described in the written request for review for purposes of R.S. 9:5604_

As set forth in Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 04-1227, p. 11-12, (La.App. 1 Cir. 6/10/05), 916 So.2d 252, 258-259 (footnotes omitted):

The time periods that govern actions for professional accountant liability are set forth in LSA-R.S. 9:5604 and are peremptive. Thus, if the right to bring such a claim is not exercised within those time periods, the claim is extinguished. See LSA-C.C. art. 3468. Overlaid on the requirements of LSA-R.S. 9:5604 are those set forth in Title 37 relative to review panels. Applying principles of statutory construction to harmonize the applicable statutes, we turn to LSA-R.S. 37:125. Therein, the legislature explicitly provided that a claimant is deemed to have exercised its right to bring a claim for professional accountant liability and prevents the extinguishing effect of peremption when it files a request for review by a review panel. Thus, we interpret the applicable statutes to provide that peremption under LSA-R.S. 9:5604 is avoided when a claimant files a request for review of its claim of professional accounting liability within one year of the negligent act, or one year of ^discovering the negligent act, but not more than three years after the negligent act. See LSA-R.S. 9:5604; LSA-R.S. 37:102; LSA-R.S. 37:125.

Moon Ventures did not and has never filed a request for review of its claim of professional accounting liability. Accordingly, it has never exercised its right to bring a claim under Title 37. Thus, it has failed to avoid peremption under La. R.S. 9:5604. Moon Ventures tries to circumvent this fact by claiming KPMG’s action in filing an answer to the suit instead of an exception of prematurity precludes the assertion of an exception of peremption. It claims, and the majority agrees, that KPMG waived its right to the panel by failing to assert the exception of prematurity. I disagree.

Moon Ventures’ main claim is that the review panel requirement, and therefore, the exception of peremption, were waived due to the lack of an exception of prematurity. This argument is based mainly on language in Solow v. Heard, 05-1028, p. 4-5, (La.App. 4 Cir. 4/12/06), 937 So.2d 875, 878, writs denied, 06-1680 (La.10/6/06), 938 So.2d 80, stating that “[t]he jurisprudence has recognized that the parties may waive the panel by failing to assert a dilatory exception of prematurity timely as required by La. C.C. P. art. 926(B), which states ‘[a]ll objections which may be raised through the dilatory exception are waived unless pleaded therein.’ ” (Second alteration in original). The Solow court cites Saia v. Asher, 01-1038 (La.App. 1 Cir. 7/10/02), 825 So.2d 1257 for this premise. However, the language in Saia this refers to is a mere footnote stating:

La. R.S. 40:1299.39.1 provides a similar provision for any claims against a state health care provider in that they must be brought before a medical review panel before suit may be commenced in a court. This court and the Louisiana Supreme Court have held the dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. See Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119. La C.C.P. art. 926(B) states, “All objections which may be raised through the dilatory exception are waived unless pleaded therein.” The parties have not raised this objection and it is waived.
Id. At 1259, fn 3.

I feel that this language dealing with the Medical malpractice Act (MMA) indicates that the exception of prematurity is waived, not the review panel. Additionally, the Fourth Circuit cases of Wesco v. Columbia Lakeland Medical Center, 00-2232 (La.App. 4 Cir. 11/14/01), 801 So.2d 1187, writs denied, 01-3304 (La.3/8/02), 811 So.2d 884, and Farve v. Jarrot, 04-1424 (La.App. 4 Cir. 10/13/04), 886 So.2d 594, writs denied, 05-7 (La.3/11/05), 896 So.2d 74, which are more recent than Saia, stand for the premise that, based on LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, in the context of the MMA, a suit filed before a review panel is requested is premature even if no exception of prematurity is filed, and that the failure to file the exception of prematurity does not prevent the assertion of prescription, or here, peremption.

While KPMG did, in fact, waive its right to assert an exception of prematurity, it did not waive the right to the review panel, which may only be waived “[b]y written agreement of both parties.” La.R.S. 37:107. Nor did KPMG waive it’s right to assert its exception of peremption, which may be raised by a party or by a court “at any time prior to final judgment.” La. C.C. art. 3460. Because Moon Ventures failed to file its complaint with the review panel as required by Title 37 within the three years set out by La.R.S. 9:5604, its claims against KPMG are perempted. Accordingly, I feel the trial court committed no error in its ruling and its decision should be affirmed.

I respectfully dissent.

      . See Reno v. Scafco, L.L.C., 03-1232 (La.App. 3 Cir. 3/3/04), 870 So.2d 311, writ denied, 04-1419 (La.9/24/04), 882 So.2d 1142; Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859.


author: PEATROSS, J.

text:
    Brandy HENDRICK, Plaintiff-Appellee, v. Johndale HENDRICK, Defendant-Appellant.
    No. 42,566-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2007.

      Law Office of Katherine Clark Dorroh, L.L.C. by Katherine Clark Dorroh, Kellie Curry, for Appellant.
    Law Office of Joel L. Pearce by Joel L. Pearce, Shreveport, for Appellee.
    Susan E. Hamm, for Children A.A.H. and H.V.H.
    Before BROWN, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

hln this juvenile court action, the father, Johndale Hendrick, appeals the trial judge’s issuance of a protective order following his determination that Mr. Hen-drick sexually abused his minor daughter, A.H. The trial judge awarded sole custody to the mother, Brandy Hendrick, with supervised visitation with her father, restricted by provisions contained in the protective order, which remains in effect until the child’s 18th birthday. Mr. Hendrick appeals. For the reasons stated herein, we affirm.

FACTS

The Hendricks were married in 2001 and they had two children, A.H., born in July 2002, and H.H., born in April 2006. The parties physically separated on October 28, 2006. Mr. Hendrick moved out of the matrimonial domicile on that date. Ms. Hendrick testified that her sister, Christy Carroway, was separating from her husband at that time and she and her dog had been living with the Hendricks for several weeks. Initially, Ms. Hendrick thought that Mr. Hendrick was upset that her sister and dog were in the house and that is why he moved out. She soon discovered, however, that he had been engaging in sexually explicit email communications with women in Shreveport; and, when confronted, he admitted to her that he was a sex addict. Ms. Hendrick allowed Mr. Hendrick to stay in the extra bedroom of the home on October 30 due to the cold weather and the fact that the rental house where he was staying had no heat.

On the morning of November 3, 2006, Ms. Hendrick visited her attorney to review and sign a petition for divorce. According to |2Ms. Hendrick, as she was leaving the attorney’s office, she received a call from her sister reporting that A.H. had told her during a bath that morning that her father had abused her. Ms. Hendrick testified that she immediately took the steps to file a Petition for Protection From Abuse, which was filed at 11:41 a.m. The petition alleged that five-year-old A.H. had told a family member that her father had “hurt her private area and sticks his fingers inside of her” and that Mr. Hendrick walked around naked in front of the child on a daily basis. The petition also alleged that Mr. Hendrick was diagnosed with bipolar manic depression and was on medications.

Later on the same day, Ms. Hendrick’s Petition for Divorce was filed, seeking joint custody with reasonable visitation for Mr. Hendrick. Mr. Hendrick emphasizes that the Petition for Divorce was filed after the Petition for Protection From Abuse and did not contain any allegations regarding abuse. As stated, Ms. Hen-drick testified that she was at her attorney’s office that morning and completed the petition for divorce. She further testified that she went back to her attorney’s office later in the day to sign the divorce petition, at which time she discussed the abuse allegations and the petition for protection with her attorney. According to Ms. Hendrick, her attorney indicated to her that the abuse allegations could be added later and that the petition should be filed for financial reasons. On his advice, Ms. Hendrick signed the petition as it had been drafted (joint custody and no abuse allegations) and it was filed later that afternoon. _J¿Ms. Hendrick asserts that that is the reason there are no allegations of abuse in the divorce petition and no request for sole custody.

Also on November 3, 2006, after she filed the Petition for Protection From Abuse, Ms. Hendrick contacted a social worker at the hospital where she worked and was referred to the Gingerbread House for services to help A.H. Ms. Hen-drick took A.H. to the Gingerbread House the following day where she was interviewed by Jennifer Flippo. This interview was videotaped and was viewed by this court during our review of the case and is discussed in detail infra.

Mr. Hendrick filed an answer to the Petition for Protection From Abuse denying any abuse and denying that he walked naked in front of the child on a daily basis. He admitted that he had been diagnosed bipolar and was under treatment; however, he alleged that his recent physical, on November 1, 2006, indicated no depression or anxiety. After several hearing dates during December 2006, the court ultimately held that a prima facie case had been presented, appointed an attorney to represent the child and ultimately granted Mr. Hendrick’s request for supervised visitation on December 22.

At the hearing on the petition for protection, Ms. Hendrick testified first. She described the call from her sister and the types of comments A.H. was making regarding her father’s actions, specifically that her father “stuck his fingers in her butt” and that he put a hanger up his butt and made it bleed-then put a lemonade tootsie roll on the hanger and ate it with the blood. A.H. also allegedly stated that he put a “pink stick” and a pink hanger in her |4butt, as well as a pink Barbie fork. Ms. Hendrick testified about the sexual emails, but they were not allowed into evidence and are not at issue on appeal.

Ms. Hendrick further testified that she and Mr. Hendrick were both registered nurses and worked in the same department. Mr. Hendrick’s license had previously been suspended for 18 months due to his abuse of narcotic medications.

Of particular significance in this appeal is a writing, or letter, authored by Mr. Hendrick and found in a filing cabinet by Ms. Hendrick as she was going through some papers that belonged to her husband after they separated. This letter was admitted into evidence as P-2 during the hearing on the protective order. The letter had inadvertently not been included in the record in the trial court due to oversight, but was supplemented to this court. The letter was written more than ten years prior to trial while Mr. Hendrick was in drug addiction rehabilitation and it contains thoughts and feelings about addiction and recovery. Mr. Hendrick verified the authenticity of the writing under oath. The substance of the writing reflects that he was preoccupied with inappropriate sexual activity from an early age, indicated by sexual dreams regarding his mother and a sexual attraction to Wendy in Peter Pan at age five. In addition, the writing alludes to sexual activity with a dog and young girls as early as the 5th and 6th grades. Specifically, it refers to a pit bull dog — “seventh grade, Lynn’s dog, pit bull, Ruby, had sex with her. A few weeks later she became pregnant and he shot her. I blamed myself.” Mr. Hendrick testified that Lynn was his brother |Rand that his brother had sex with the dog and later shot her. He blamed himself because he did nothing to stop it. The letter also refers to a clubhouse built by Mr. Hendrick and friends in the 7th grade. Mr. Hendrick agreed that the purpose of the clubhouse was to do sexual things with girls, but he maintained that nothing ever actually happened in the clubhouse. The letter further reveals a pervasive string of drug addiction and addictive behavior throughout his young adulthood. Mr. Hendrick testified repeatedly that he is a recovering drug addict and that he abused multiple drugs until his sobriety date of November 7, 1999. At the time of the hearing, Mr. Hendrick testified that he remained clean and sober since that date.

In her testimony, Ms. Hendrick stated that it was part of the “daily routine” that Mr. Hendrick would bathe with the children. An older son of his testified that, until age 11, he was told to take a shower with his father to conserve water. Mr. Hendrick also bathed with A.H. Ms. Hen-drick testified that she thought this was inappropriate and she told him to stop the behavior. There is also testimony that Ms. Hendrick’s mother told her that A.H. had made the comment that her daddy had touched her booty; but, as an isolated statement, Ms. Hendrick believed that this was related to Mr. Hendrick’s bathing the child. This prompted Ms. Hendrick to tell Mr. Hendrick that the co-bathing should cease. Conversely, Mr. Hendrick testified that, during an 18-month period when A.H. was a toddler and he was unemployed due to suspension of his nursing license, he and Ms. Hendrick agreed that he would stay home and be the primary caregiver of A.H. while Ms. Hendrick worked. He testified that Ms. Hendrick would 1 fibring the child to him in the shower and ask him to bathe her so she could get ready for work. He testified that Ms. Hendrick never voiced an objection to his showering with A.H. and he continued to do this until the child was about three years old.

Mr. Hendrick admitted in his testimony that, in 1998 while using drugs, he harassed a former girlfriend by leaving notes, putting bleach in her plants and stealing her computer, gun and cat. He also urinated in her milk and watched her drink it. Eventually, he returned the computer and gun, but kept the cat after telling her that the cat had run away.

In addition, Mr. Hendrick was questioned about the sexual aspect of his addiction. He testified that, as an addict, it was his predisposition to “change the way he feels.” According to Mr. Hendrick, this can be through a myriad of behaviors around alcohol, drugs, work and relationships and can have a sexual aspect to it. He used as an example the email correspondence in which he was engaged with several women during his marriage. Mr. Hendrick denied ever having actually met and had physical relations with any of these women. Finally, Mr. Hendrick denied having any inappropriate contact with any of his children. He testified that he cleaned A.H.’s vaginal and rectal areas when changing her diaper or bathing her, but there was never any other contact. He also denied having routinely showered with his older son from his first marriage.

Tunisia Stokes, A.H.’s preschool teacher at Noel Methodist daycare also testified. She described A.H. as a bright and intelligent child. Ms. Stokes had noticed no abnormal behavior from A.H. She testified, |7however, that she was aware that A.H. had some aggressive problems, was angry and hit other students before Ms. Stokes took over A.H.’s class. She did not witness any of this type of behavior from A.H.; however, she testified that A.H. does have tantrums when she gets in trouble and does not want to go to time out. She further testified that, in June 2006, A.H.’s mother had reported to her that A.H. had stated that another child (whom she specifically named) had touched her private area. Ms. Stokes reported this to her director who, in turn, spoke with A.H. and the other child’s parent. Ms. Stokes observed A.H. closely following this accusation and never saw any inappropriate behavior by A.H. or to her. A.H. ultimately recanted this accusation against the other child. Ms. Stokes further testified that, shortly before the hearing, A.H. related to her that her father “stuck a pink stick up her butt” and down her sister’s throat. According to Ms. Stokes, A.H. approached her during normal classroom activity and told her that she needed to tell her something. They went to a quiet corner and A.H. made these statements to her. Ms. Stokes testified that this was a spontaneous statement of the child and she did not probe the child for information. Afterward, A.H. sat by herself for a few moments and then resumed her activity. Ms. Stokes stated that A.H. was not crying, upset or afraid, but was “straight faced,” although she did seem a little “uneasy.”

Detective David Robinson of the Caddo Parish Sheriffs Office testified next. He conducted an audio and videotaped interview with Mr. Hendrick on November 13, 2006. Mr. Hendrick’s lawyer was present during the interview. A few significant points from this interview, as ^related by Det. Robinson, are that Mr. Hendrick said that showering with his daughter every day was normal in his household and, initially, he said he would do this until she reached puberty. Later, Mr. Hendrick changed that to 8 years old, but told the detective that he would shower and bathe her if she was 19 and came home intoxicated. The court clarified during this testimony, however, that Mr. Hendrick did not reference taking his own clothes off, but merely showering the daughter. Mr. Hen-drick was inconsistent in his statement regarding bathing the child as well. First, he said that she would wash herself and he did not touch her. Later he admitted that he would use a sponge to wash her vagina and her “bottom.” He also told the detective, without further explanation, that his addiction “has a sexual aspect to it.”

Detective Robinson testified about his investigation and, specifically, stated that he had talked with Ms. Hendrick and her parents, the Driggers, at the Gingerbread House on November 6, 2006. Mr. Drig-gers informed him that Mrs. Driggers had observed A.H. putting a McDonald’s toy in her vagina. A.H. then told Mrs. Driggers that her father had put his fingers inside of her. Mr. Driggers related this to Det. Robinson and, further, told him that Mrs. Driggers had informed Ms. Hendrick of this incident shortly after it occurred. Ms. Hendrick, however, denies this as explained above.

In addition, Det. Robinson testified that Ms. Hendrick gave him a pink clothes hanger in a paper bag that she said she found in the back of her husband’s closet. Ms. Hendrick told the detective that, when A.H. saw the hanger, she told her mother that that was the “pink trophy” that daddy uses. I9A buccal swab was done on the hanger, but no results are provided in the record.

No criminal charges were filed in this matter because of a lack of physical evidence according to Det. Robinson. When the judge was questioning the detective about the district attorney’s decision not to prosecute, the detective said that the decision not to prosecute was made before the test results were received from the DNA test on the hanger. As stated, however, there are no results of the DNA test referenced in the record. According to Ms. Hendrick, the pink hanger was not the pink stick. Ms. Hendrick told Detective Robinson that A.H. said it was not — there was no confirmation of this from the child herself.

Thomas Hendrick, Mr. Hendrick’s 17-year-old son from his first marriage, testified next. He confirmed that it was normal for him to shower with his father up until age 11. He denied that it was sexual in nature or that anything inappropriate happened during the showers. He described an on and off relationship with his father and stated that they have not been close in several years. Thomas’ mother and Mr. Hendrick’s first wife, Suzanne Futch, testified about the volatile nature of their marriage. She described Mr. Hen-drick’s habits of smoking marijuana in front of the children when she was not at home and his physical and verbal abuse of her. She also testified that he was arrested for shoplifting with the children and was turned in to Child Protective Services by Thomas’ teacher after beating him for not understanding his homework.

| 1(| Jennifer Flippo, child psychologist and forensic interviewer at Gingerbread House, testified concerning her interview of A.H. The court accepted her as an expert in forensic interviewing. She testified that, in about 80 per cent of the cases, there is no physical evidence of sexual abuse in children. The lack of physical evidence in this case does not affect her procedure.

Our review of the recorded interview revealed a very bright and articulate four-year-old. A.H. was busy coloring and drawing during the interview and never made eye contact with Ms. Flippo while answering questions. Ms. Flippo asked the same types of questions repeatedly, with A.H. answering in a very nonchalant and unaffected manner. On the dvd, the child did not appear surprised or particularly interested in the questions posed by the interviewer; however, A.H. expressly confirmed that her daddy had put a pink stick in her butt. She denied having ever seen her daddy naked except while he was “getting ready.” A.H. described the “pink stick” as something other than a toy and stated that it did not matter where it was, that her daddy would always find it. A.H. was able to correctly circle appropriate body parts when asked to do so and, specifically, referred to both female and male genitalia as “butts.” When asked on two occasions (not in succession) how many times her daddy had put the pink stick in her butt, A.H. counted rapidly “1 2 8 4 5 6 7 8 9.”

Mark Swan, a computer analyst, was hired by Ms. Hendrick to determine what was contained in one of Mr. Hendrick’s computers. Mr. Swan testified briefly that there were sexual images on the computer, Inbut he could not confirm if the images were of underage women or teenagers.

Christy, Ms. Hendrick’s sister, testified next and described the conversation she had with A.H. in the bathtub on November 8, 2006. She stated that she sensed something was wrong because A.H. did not want to see her father after he left the home the week before. She asked A.H. if her daddy hurt her, to which A.H. replied, “yeah.” After similar questions, A.H. stated that “daddy dug his fingers in my butt.” Christy testified that, after this, A.H. became more vocal about the abuse and talked about the pink stick and the act of putting the lemon flavored tootsie roll on a hanger, inserting it in his butt and either eating it or making A.H. eat it.

Briefly, the director of the daycare testified that she had not observed A.H. to be an untruthful child or an exaggerator.

Dr. Jennifer Rodriguez, pediatrician at LSU, was qualified as an expert in child sexual abuse. She examined A.H. on November 7, 2006. The exam was normal, showing no signs of sexual abuse in the hymen, vagina or rectal areas. There was no scarring or signs of previous trauma. Dr. Rodriguez testified that damage from sexual abuse, such as a tear in the hymen, can heal in a week and show no signs of trauma on examination. She opined that often, in 85 to 90 percent of cases, even when there has been abuse, the exam is normal.

Several other witnesses, however, testified that the above evidence provided the basis for the judge’s ruling. On January 8, 2007, the trial judge issued his oral ruling finding by a preponderance of the evidence that 11?Mr. Hendrick abused A.H. and a protective order was issued until A.H.’s 18th birthday. The court assumed exclusive jurisdiction as A.H. was found to be a child in need of care based on the sexual abuse. Sole custody was awarded to Ms. Hendrick. Mr. Hendrick received supervised visitation conditioned on his obtaining a sexual perpetrator evaluation and follow recommendations therefrom; obtaining a substance abuse evaluation and following recommendations for treatment along with submitting to random drug screens; and obtaining a mental health evaluation and following recommended treatment. Mr. Hendrick was ordered to pay all the costs of court, reasonable attorney fees and the costs of A.H.’s counseling. Mr. Hendrick appeals.

DISCUSSION

Abuse of discretion in fínding sexual abuse

In his third assignment of error, Mr. Hendrick challenges the trial judge’s finding by the preponderance of the evidence that he sexually abused A.H. He focuses on the lack of physical evidence and, in his opinion, the unreliability of videotaped interview. Mr. Hendrick further asserts that all of the testimony of A.H., Ms. Hendrick and Christy should be discredited for various reasons, but particularly, that the divorce petition was filed after the petition for protection and mentioned nothing about the abuse. The crux of his argument is that Ms. Hendrick and Christy knew there would be a custody battle and created this story to aid their position. He maintains that the abuse allegation was told to A.H. by her mother and that A.H. simply repeated what she heard her mother tell her had happened.

11sMr. Hendrick also emphasizes these inconsistencies in Christy’s testimony regarding what time of day she bathed A.H. According to Mr. Hendrick, the inconsistencies should totally discredit her testimony-

Mr. Hendrick next attacks the statements made by A.H. He notes that A.H. was with her mother’s family for four days following the filing of the petition for protection and during that time she was repeatedly questioned about the allegation of abuse. He submits that the original alleged statement that he “dug his fingers in [A.H.]’s butt” expanded to include a pink stick, trophy, fork and coat hanger over the course of the time Ms. Hendrick’s family was going over the story with A.H. He notes Dr. Rodriguez’s testimony that, when a child is repeatedly asked leading questions, the child can be become confused about what really happened. Mr. Hendrick cites inconsistencies in A.H.’s answers in the taped interview. For example, he asserts that her first answer to the question of whether or not he ever touched her butt was “no” and she also answered “no” to the first time she was asked if he “put a pink stick in her butt.” After repeated questioning with the same questions, her answers changed. According to Mr. Hendrick, this is totally unreliable testimony from such a young child.

Finally, Mr. Hendrick adamantly challenges the introduction of evidence he considers irrelevant, such as his drug abuse in the past. He argues that his past drug abuse, rehabilitation and sexual activity with women has no bearing on the question of whether or not he abused A.H. He asserts that the judge abused his discretion in relying on irrelevant evidence. He also notes that A.H. is not overly emotional or displaying the type of | ]4deviant behavior that would be indicative of abuse. He points out that A.H. would not look directly at Ms. Flippo when she answered her questions during the interview, and that was an indicator that she was not providing truthful answers.

Ms. Hendrick, however, asserts that, as an evidentiary matter, she carried her burden of proving by a preponderance of the evidence that Mr. Hendrick abused A.H. She argues that the only person not to be credited as truthful in this case is Mr. Hendrick.

To obtain a restriction or suspension of Mr. Hendrick’s visitation rights, under either the Civil Code or the Children’s Code, on the ground that A.H. was sexually abused by him, Ms. Hendrick was required to prove sexual abuse by Mr. Hendrick by a preponderance of the evidence. La. C.C. art. 136; La. Ch. C. art. 617(A), (B). We must affirm the trial court’s finding that this is the case unless it is manifestly erroneous. An appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47. Under this standard, if there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). A finding is manifestly erroneous only if it has no reasonable basis in the record viewed in its entirety. Stobart v. State, DOTD, 617 So.2d 880 (La.1993).

After considering the testimony of Ms. Hendrick and Christy, along with the statements made by A.H. to Ms. Flippo at the Gingerbread House, |1Bwe cannot say that the trial court manifestly erred in its conclusion in this case. As discussed in detail supra, A.H. offered substantially the same account of actions of her father in answer to questions posed by Ms. Flippo as she did to her aunt. We note the concern of the trial judge regarding the interviewing technique and we do not discount Mr. Hendrick’s characterization of A.H. as unemotional or rehearsed during the interview. We find significant, however, that A.H. was consistent and unwaiver-ing on the most critical fact in this determination, i.e., that her father had touched her private areas with his finger and the “pink stick.”

Moreover, we will not disturb the trial judge’s credibility determination to believe Ms. Hendrick and Christy. According to these witnesses, the child reported the abuse to Christy, who immediately telephoned Ms. Hendrick, who immediately filed the petition for protection. Ms. Hen-drick explained that her attorney had advised her that it was not necessary to amend the divorce petition that she had verified earlier that morning, so it was filed by her attorney later in the day without mention of the abuse allegations. Admittedly, the timing of events of that day may seem suspect; however, Ms. Hendrick provided an explanation of the course of that day, which was believed by the trial judge. As stated, the fact finder is in the best position to judge the demeanor of the witnesses, therefore, we defer to his determination of credibility and will not disturb such on appeal.

Further, we do not find the absence of physical evidence of abuse to be determinative of sexual abuse of the child. As Ms. Rodriquez testified, it |Uiis not unusual for young victims of sexual abuse to not show any physical signs of trauma.

The State has a compelling interest in protecting children from sexual abuse. Globe Newspaper Co. v. Superior Ct. for Norfolk County, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). We conclude that the trial judge’s finding that Mr. Hen-drick sexually abused A.H. and its entry of the protective order under La. Ch. C. art. 1564, et seq., was neither manifestly erroneous or clearly wrong. We do note, however, the trial judge significantly and expressly stated that the evidence in this case falls short of clear and convincing and he expressed concerns over several aspects of this case. In this regard, we believe it imperative to stress the juvenile’s court continuing jurisdiction over A.H. as a child in need of care and, as such, we emphasize the trial judge’s following comment made during his oral ruling in this case:

In this case supervised visitation is necessary and essential to assure the health, safety and welfare of this child pending Mr. Hendrick obtaining sexual perpetrator evaluation by Jerome Wilson and following recommended treatment. (Emphasis ours.)

As previously stated, it is the opinion of this court that any evaluations completed subsequent to the entry of the protective order would be relevant in any review hearing on the issue of visitation.

Our inquiry does not end here. As previously mentioned herein, Mr. Hen-drick complains of the admission into evidence of Exhibit P-2.

Although we find the relevance of this historic information to be suspect, this record, when taken as a whole, supports the trial court’s finding 117of sexual abuse. There is no indication that the trial judge afforded this writing any particular great weight, especially when there exists such strong evidence of Mr. Hendrick’s sexually inappropriate behavior with A.H. in the form of A.H.’s own words during the interview with Ms. Flippo. Assuming, arguen-do, that P-2 was improperly admitted, we do not find its admission to be reversible error.

Likewise, we do not find the trial court’s refusal to appoint an independent mental health examiner to be reversible error. We are sympathetic to Mr. Hen-drick’s argument in this regard; however, we are constrained by the standard of review and an appellate court cannot disturb the findings of the trial court simply because it may have decided the matter differently had it been sitting as the finder of fact. In sensitive and life-altering matters such as alleged sexual abuse of one’s child, this panel does not dispute that independent psychological examinations may prove to be of tremendous benefit in deciding such difficult cases as this. It remains, however, within the trial judge’s vast discretion to determine when such independent mental health examinations are warranted. See. La. C.E. art. 702. The trial judge, especially in the juvenile court setting, is vested with the responsibility and discretion to decide emotionally charged and important issues such as sexual abuse and we defer to the trial judge’s decision in the instant matter.

CONCLUSION

For the foregoing reasons, the protective order is affirmed. Costs of appeal are assessed against Johndale Hendrick.

AFFIRMED.

      . The Petition for Protection From Abuse was filed on November 3, 2006, at 11:41 a.m. The Petition for Divorce was filed November 3, 2006, but the time stamp portion has been cut off by photocopying. The testimony, however, indicates that it was filed at 4:25 p.m.