author: JOHN D. SAUNDERS, Judge.

text:
    Mia FIGGINS v. WAL-MART.
    No. 06-806.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 2006.

      W. Jay Luneau, Thomas D. Davenport, Luneau Law Office, Alexandria, Counsel for PlaintiffAppellant: Mia Figgins.
    Charles Martin Kreamer, Patrick A. Johnson, Allen & Gooch, Lafayette, Counsel for Defendant/Appellee: Wal-Mart.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   JOHN D. SAUNDERS, Judge.

| Appellant, Mia Figgins, was injured in a work related accident in July 1996. Appellant received treatment from two separate doctors, which was approved and paid for by her employer, Appellee, Wal-Mart Stores, Inc., after the occurrence of the accident; however, she continued to experience pain as a result of her injury. Appellant then sought treatment with a third physician; however, Appellee refused to authorize said treatment, claiming it was not necessary. Appellant subsequently filed a Disputed Claim for Compensation. After a trial on the merits, the trial court ruled that Appellant was not entitled to the treatment, as she was seeking “future medical care.” The trial court further held that Appellant did not prove by a preponderance of the evidence that further medical treatment was reasonable and necessary, and therefore, Appellant’s claim was dismissed with prejudice.- Appellant now appeals the judgment in favor of Ap-pellee, Wal-Mart Stores, Inc. We reverse and render judgment in favor of Appellant.

FACTS AND PROCEDURAL HISTORY

Appellant, Mia Figgins, an employee of the Natchitoches Wal-Mart Store, suffered a work-related injury on July 30, 1996, when boxed stereo equipment fell from a shelf and struck her on the head. Appellant was initially examined at the Natchi-toches Parish Hospital Emergency Room, where the examining physician, Dr. Knecht, noted that she suffered a contusion, for which she was prescribed Extra Strength Tylenol, was given an ice pack, and was told to return if necessary.

Appellant continued to suffer with sharp pains in her scalp, and on September 18, 1996, she began treatment with neurologist, Dr. Riad Hajmurad. She remained under the care of Dr. Hajmurad for approximately five years, during which time, she complained of intermittent neuralgic pain and tenderness in her right 12parietal area, just behind her hairline. She was told that her condition was non-surgical, and was prescribed medication to manage the pain. When the prescription medications ran out, Appellant relied solely on over-the-counter medications. Dr. Hajmu-rad also conducted two MRIs as well as an EEG, and cranial and cervical x-rays, all of which came back normal. On February 25, 2002, • Dr. Hajmurad issued a report stating that Appellant was at maximum medical improvement (MMI), and that with her condition, she could expect to receive treatment approximately every six months.

Appellee obtained a second medical opinion from neurosurgeon, Dr. Thomas Flynn on November 20, 2003. Dr. Flynn’s report stated that his examination of Appellant was normal from an objective standpoint. However, he noted that when he palpated the “neuroma” on Appellant’s scalp, he could feel the “bump” and reproduce her symptoms. He found her symptoms to be mild and agreed with Dr. Hajmurad that the only thing she could do was learn to cope with the pain. Dr. Flynn did not recommend any additional treatment, stating that at the time of the examination, he did not feel that her condition was physically disabling.

Appellant continued to suffer from severe pain in her scalp every few weeks. In 2004, when over-the-counter medication failed to relieve the pain, she requested approval to seek medical treatment with Dr. Gerald LeGlue, a physiatrist. Appel-lee, however, failed to authorize the requested medical treatment on the basis that both Dr. Hajmurad and Dr. Flynn, the physician from whom it obtained its second medical opinion, had released Appellant, and that no further treatment was necessary.

On January 19, 2005, Appellant filed a Disputed Claim for Compensation seeking authorization for the medical treatment with Dr. LeGlue, as well as penalties 13and attorney’s fees based on Appellee’s failure to approve necessary medical treatment. After a trial on the merits, the trial court found that Appellant was not entitled to medical treatment with Dr. LeGlue, as it was a request for “future medical treatment.” The court further held that Appellant did not show by a preponderance of the evidence that treatment with Dr. Le-Glue was reasonable and necessary. Therefore, Appellant’s request for payment of the requested medical treatment, as well as her request for penalties and attorney’s fees, were denied, and her claim was dismissed with prejudice.

ASSIGNMENTS OF ERROR

1) The trial court erred when it held that Appellant was not entitled to treatment from Dr. Gerald LeGlue.

2) The trial court erred when it held that Appellant was seeking approval for future medical care.

3) The trial court erred when it held that Appellant should have provided for her own medical treatment.

4) The trial court erred when it failed to award statutory penalties and attorney’s fees.

STANDARD OF REVIEW

A workers’ compensation judge’s finding as to whether a requested medical treatment is necessary is factual in nature. Accordingly, it will not be disturbed on review in the absence of manifest error. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733.

LAW AND ARGUMENT

Assignment of Error No. 1: The trial court erred when it held that Appellant was not entitled to treatment from Dr. Gerald LeGlue.

Appellant argues that the court erred in its ruling, and that she is entitled to receive medical treatment from her physician of choice, physiatrist, Dr. Gerald LLeGlue. Louisiana Revised Statute 23:1203(A) mandates that an employer provide an injured employee with all necessary medical treatment. To establish a claim for medical benefits, the employee must show to a reasonable certainty and by a preponderance of the evidence, that the benefits are occasioned by the work-related accident and are necessary. Alleman v. Fruit of the Loom-Crowley, 96-1246 (La.App. 3 Cir. 3/5/97), 692 So.2d 485. Palliative treatment is included in the types of treatment available to the injured employee. Barry v. Western Elec. Co., Inc., 485 So.2d 83 (La.App. 2 Cir.), writ denied, 487 So.2d 441 (La.1986).

In this case, the issue before us is whether the treatment requested by Appellant, Mia Figgins, is reasonable and necessary. If it is, Appellee is required to authorize and pay for the treatment of Appellant’s accident-related injury. It is undisputed that Appellant suffered an injury when a box containing stereo equipment fell from a shelf and struck her on the head. Dr. Hajmurad, Dr. Flynn, and Appellant have all testified that Appellant suffered a neuroma, a bruise or injury to a nerve, in her scalp as a result of the accident.

Dr. Hajmurad testified that he initially felt that Appellant’s neurological pain was the result of bruises to the superficial sensory nerve incurred from the trauma of her head injury. When Appellant experienced no change in her condition nearly three months later, Dr. Hajmurad suspected that she was suffering from “some type of neuralgia” due to her injury. Dr. Flynn testified in his deposition that his diagnosis of Appellant’s condition was the same as that of Dr. Hajmurad. He stated that his inspection and palpation of Appellant’s scalp and neck during the November 2003 examination revealed a small neuroma in the scalp just behind the hairline, approximately five centimeters off the mid-line. When he palpated, or pressed on, the | ¡¡neuroma, he could reproduce Appellant’s symptoms, and he could feel the “bump” on her scalp. He testified that Appellant’s complaints were consistent with the symptoms of a person who suffered from a neuroma.

Appellant argues that she suffers from a clearly identifiable medical problem, for which Dr. Hajmurad opined that she would need continued treatment. She argues that under La.R.S. 23:1121(B)(1), she is entitled to select her treating physician, and that “[disagreement between physicians concerning the best method to treat her problem does not mean that treatment should be denied.” Appellee counters, arguing that the trial court was correct in determining that medical treatment by Dr. LeGlue, in particular, was neither reasonable nor necessary.

Appellant argues that her treating neurologist, Dr. Hajmurad, opined that she would need continued treatment for her condition, as evidenced by his letter dated February 25, 2002, stating that Appellant was at maximum medical improvement, that she required no work restrictions, and that she could expect to receive medical treatment every six months, as she was still symptomatic. Appellee, however, asserts that this letter “essentially released” Appellant from Dr. Hajmurad’s care as of February 25, 2002, indicating that no further medical treatment was necessary. Appellee furthers its claim by asserting that Appellant’s pain “remained mild and intermittent” and never increased over the five years Dr. Hajmurad treated Appellant, and that the injury did not affect her daily activities nor her work.

Appellee additionally claims that Appellant has not objectively proven her condition, as her complaints of pain are solely subjective and symptomatic. However, Dr. Hajmurad testified that in a case such as Appellant’s, most complaints will be symptomatic and subjective, as a neuroma is “difficult to see.” He went on to testify pin his deposition that although there is a test • for neuralgia, Appellant was not a good candidate for such a test, as it is “very difficult to check the specific nerve,” as “this is the distribution of the nerve, like in the scalp.” He explained, “You know, this nerve is like the thick of your hair, you know, one of them causing some of the symptoms.” However, as stated earlier, Dr. Flynn felt the neuroma on Appellant’s scalp during the exam he conducted in November 2003.

Appellee also notes that the trial court, in its reasons for judgment, pointed out that despite Dr. Hajmurad’s comment on a possible nerve block, Appellant did not return to him or any physician for treatment. However, Dr. Hajmurad testified in his deposition that at the time he was treating Appellant, he did not feel that she needed a nerve block. He did, however, state that if the pain became more frequent or severe, then he would recommend a nerve block. Appellant testified in her deposition that she, in fact, attempted to return to Dr. Hajmurad’s office in 2002, after she moved back to the area from living briefly in Dallas; however, her request was denied by Appellee.

When asked if Appellant could cope with her condition using only over-the-counter medicines, Dr. Hajmurad replied, “Yeah, because she has a mild condition, you know, unless it starts flaring up on her. Sometimes she can come to the doctor and get some stronger pain medicine.” He then testified that if the pain became more frequent, more severe, that Appellant should see a doctor.

Dr. Flynn did not recommend additional treatment after he conducted his exam on Appellant, as he felt that her condition was not disabling at the time, though he offered to excise the neuroma if Appellant ever wished to do so. When asked what he recommended in case Appellant could not cope with the pain, he stated that |7excision of the neuroma would be the appropriate course of action. However, he testified that he would defer to Appellant’s treating doctor if he suggested a course of conservative treatment with anti-inflammatory or other medicines.

Appellant points out that she can not go to a doctor to get stronger medications per Dr. Hajmurad’s recommendation, as Ap-pellee has refused to authorize her request to see not only physiatrist, Dr. LeGlue, but also Dr. Hajmurad in 2002, claiming that she requires no further medical treatment. Additionally, excision of the neuroma would require a small surgery, a procedure performed by a physician.

Appellant additionally argues that under La.R.S. 23:1121(B)(1), she is entitled to select her treating physician. The statute provides in pertinent part:

B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S.23:1124(B), denied his right to an initial physician of choice. After his initial choice the employee shall obtain pri- or consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

Appellant argues that pursuant to La. R.S. 23:1121(B)(1), she has the right to select one treating physician in any field or specialty, and that she is not required to obtain approval to change to another treating physician in another field or specialty. She points out that she has not selected a physiatrist other than Dr. LeGlue, nor has she been treated by a physician in that speciality. Therefore, she maintains that she has the right to select him as her treating physician. Appellee counters, asserting that a claimant’s choice of physician under 23:1121(B)(1) must be reasonable and necessary, and that Appellant’s request for treatment with Dr. LeGlue is not treasonable or necessary, as he is a physiatrist, whose specialty is physical medicine and rehabilitation. However, Appellee cites no law for this assertion.

Appellee asserts that Appellant only offered the explanation that she had heard that Dr. Le Glue was “good with pain” and was “good at what he does” and that she wanted see him to be prescribed medications. Appellee argues that both Dr. Hajmurad and Dr. Flynn’s testimony prove that Appellant could treat her condition with over-the-counter medication, and therefore, treatment with Dr. LeGlue is unreasonable. However, in his deposition, Dr. Hajmurad stated that, although neuralgia can at times resolve itself, if a patient is still symptomatic and experiences pain on an intermittent basis, she needs to see a physician to get prescription medication. While Dr. Flynn stated that although he would not recommend prescription pain medication, there are non-narcotic, analgesic prescription medications in existence that could treat her condition. He would defer to her treating physician if the treating physician suggested a course of conservative treatment with anti-inflammatory or other medications.

Based on the evidence in the record, we find Appellant’s request for authorization of medical treatment by Dr. LeGlue is both reasonable and necessary. Appellant has been suffering from neurological pain as a result of a work-related accident for approximately ten years. Dr. Hajmurad described the pain as a “jabbing pain, sharp pain, stabbing pain” that lasts for a period of time ranging anywhere from a several hours to several days at a time. Although it may be “intermittent,” occurring only every few weeks, it is clear that the pain is severe. Appellant has testified that when she does experience the pain, she is unable to touch the right side of her head or comb her hair until the swelling reduces.

IflDr. Hajmurad has not examined Appellant since 2001; Dr. Flynn has not examined Appellant since November 20, 2003. Both Dr. Hajmurad and Dr. Flynn recommended treatments that required the care of a physician in the event that Appellant’s pain became more severe or she was no longer capable of coping with it. Appellant has testified that over-the-counter medicines have failed to alleviate her pain.

Additionally, we find that under La.R.S. 23:1121(B)(1), Appellant has the right to select Dr. LeGlue as her treating physician. Dr. Hajmurad was her physician of choice in 1996. However, Appellant received little to no relief from her symptoms under his care. She has the right to select a treating physician in any field or specialty under the statute, and she has chosen Dr. LeGlue. Therefore, we find that Appellant is entitled to choose Dr. LeGlue as her treating physician under La.R.S. 23:1121(B)(1).

There is nothing in the record to suggest that Appellant’s desire to see Dr. LeGlue is based on a desire for secondary gain, as she has never missed any work, has never made a claim for compensation benefits, and is not making such a claim at the present time. There is nothing in the record to suggest that Appellant in engaged in some form of “doctor shopping” as she concedes that the diagnosis by Dr. Hajmurad and Dr. Flynn is the proper diagnosis of her condition and she is not seeking to change this diagnosis. There is also nothing in the record to suggest that she is engaged in “over-medication” of her condition, as she has limited her treatment to over-the-counter medication for the last several years. Her position is that she has followed the advice of Dr. Hajmurad for nearly nine years, that she is still in need of treatment, and that she would like to try a different doctor in a different, but relevant, |inspecialty to see if it is possible to get better results.

The Appellee’s position is that it would be unreasonable for Appellant to see any doctor except Dr. Hajmurad, and indeed, at oral argument, counsel suggested that even this might be unreasonable. We reject Appellee’s contention that Appellant’s request is unreasonable. Indeed, one would be hard pressed to find a litigant in any reported workers’ compensation case making a request as modest, inexpensive, and yes, reasonable, and being denied that request. Appellant has not requested surgery, and she has not requested treatment by a more highly specialized, and therefore, more expensive physician. She has merely requested that she be allowed to see a physiatrist who might help her manage her medical problem within the purview of his specialty. We find this to be a most reasonable request, and conversely, we find the denial by Appellant to be arbitrary and capricious. Therefore, we reverse the ruling of the trial court.

Assignment of Error No. 2: The trial court erred when it held that Appellant was seeking approval for future medical care.

Appellee argues that Appellant is seeking an award for future medical treatment and argues that a claimant may not be awarded for future medical treatment. Jones v. El Mesero Restaurant, 97-636 (La.App. 3 CSr. 10/29/97), 702 So.2d 1133. In Jones, it is suggested that an employer cannot be made to pay medical expenses in advance. The Jones court also points out that non-emergency health care costs must be agreed to by the payor, or costs cannot exceed $750.00. La.R.S. 23:1142. In this case, the employee, Appellant, was not attempting to have medical bills paid in advance. Rather, she was attempting to have non-emergency treatment approved as required by La.R.S. 23:1142. Accordingly, we find this assignment has no merit.

11TAssignment of Error No.3: The trial court erred when it held that Appellant should have provided for her own medical treatment.

In its reasons for judgment, the workers’ compensation court discussed that it had asked Appellant why she did not pay out of pocket for treatment with Dr. LeGlue or seek treatment with another physician if her pain was so severe, suggesting that Appellant’s pain is not as severe as she claims. “The workers’ compensation scheme was not designed for the worker to pay the costs of his medical treatment. It is the obligation of the employer to pay for the cost of medical services, not the obligation of the employee.” Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, 1188. It is clear that Appellant was injured in the course and scope of her employment and that her injury and resulting symptoms are a result of the on the job accident. Therefore, we find that it is the responsibility of Appellant’s employer, Appellee, to pay the costs of her medical treatment. Accordingly, we find that the trial court erred in finding that Appellant should have provided for her own medical treatment.

Assignment of Error No. 4: The trial court erred when it failed to award statutory penalties and attorney’s fees.

Appellant maintains that pursuant to La.R.S. 23:1201(F), she is entitled to attorney’s fees and penalties for Appellee’s failure to authorize medical treatment.

The employer is obligated to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment and any nonmedical treatment recognized by the laws of this state as legal.” LSA-R.S. 23:1203(A). Thus we conclude that a failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. Depending on the circumstances, a failure to authorize treatment is | -^effectively a failure to furnish treatment.

Authement, 840 So.2d at 1188.

In order to reasonably controvert a claim, a defendant must prove that there was a reasonable basis for its denial of benefits. The critical inquiry is whether the employer was arbitrary, capricious, and without probable cause in withholding or discontinuing its payment of benefits. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41. As stated earlier, and for the reasons aforementioned, we find that Appellee was arbitrary, capricious, and without probable cause in its denial of medical treatment. Accordingly, we award Appellant penalties and attorney’s fees in the total amount of $5,000.00, including work done at the trial level and on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is reversed, and the costs of this appeal are assessed to Appellee, Wal-Mart Stores, Inc.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Monique Guy, Wife of/and Barry GUY v. Dr. Brian BOURGEOIS, Dr. Kenneth Coignet.
    No. 06-CA-513.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.
    Rehearing Denied Jan. 9, 2007.

      David A. Abramson, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Peter E. Sperling, A. Jacob Culotta, Jr., Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Grier J. Gregory, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

I Jn this action for medical malpractice, plaintiffs appeal from a judgment in favor of defendants rendered in accordance with a jury verdict. For the reasons stated herein, we affirm.

Facts and Procedural History

Plaintiffs herein, Monique and Barry Guy, brought the instant suit for damages against Dr. Brian Bourgeois and Dr. Kenneth Coignet, as well as their insurer, St. Paul Fire and Marine Insurance Company. In their petition, plaintiffs allege that on Friday, June 2, 2000, Monique Guy began to experience abdominal pain, nausea and vomiting. Her husband brought her to the emergency room at West Jefferson Medical Center, where she received x-rays and blood tests and was discharged with a prescription for an ultrasound of her gallbladder on the following Monday. On Saturday, June 1 c.3, 2000, Mrs. Guy’s pain, nausea and vomiting resumed, and she contacted her family physician, Dr. Kenneth Coignet. She saw Dr. Coignet the same day, and she alleged she showed him the prescription for the ultrasound. Dr. Coignet admitted her to West Jefferson Medical Center with a diagnosis of biliary colic and cholelithiasis, and incorrectly noted on her record that an ultrasound indicated the presence of gallbladder stones. Plaintiffs allege that no ultrasound was performed prior to her admission to the hospital.

Upon her admission to West Jefferson, Dr. Coignet asked for a general surgery consult, and Dr. Brian Bourgeois answered this call. Dr. Bourgeois examined Mrs. Guy and obtained a history from her on June 3, 2000, and he subsequently recommended a laparoscopic cholecystectomy which he performed on the following day, June 4, 2000. According to plaintiffs’ petition, Dr. Bourgeois did not seek to review the ultrasound report.

Plaintiffs allege that the surgery performed was unnecessary and that the pathology report indicated that no gallbladder stones were discovered during the procedure. Plaintiffs also allege that following the surgery, Mrs. Guy continued to have the same symptoms which originally caused her admission to the hospital. Although she continued to complain of pain, she was discharged on the evening of June 5, 2000.

The following evening, June 6, 2000, Mrs. Guy returned to West Jefferson complaining of pain, abdominal distention and constant vomiting, and she was readmitted to the hospital. On June 7, 2000, Mrs. Guy was seen by Dr. Bourgeois who believed that she was having complications from the laproscopic surgery. Over- the course of the next few days, Dr. Bougeois diagnosed Mrs. Guy with post-operative ileus, and he believed her ^symptoms were consistent with this diagnosis. When Mrs. Guy’s condition did not improve, Dr. Bourgeois ordered a CT scan on June 12, 2000 which the radiologist opined may have indicated appendicitis.

Dr. Bourgeois then recommended a second surgery, which was performed on June 12, 2000. During surgery, Dr. Bourgeois found a substantial amount of pus in Mrs. Guy’s abdominal cavity indicating the presence of infection. Dr. Guy removed Mrs. Guy’s appendix, which was inflamed. He also removed a portion of Mrs. Guy’s small bowel which was found to be necrotic. Plaintiffs allege that Mrs. Guy’s bowel was injured during the gallbladder surgery which was negligently performed by Dr. Bourgeois on June 4, 2000.

Following surgery on June 12, 2000, Mrs. Guy’s condition continued to deteriorate. Due to the sepsis she suffered due to the bowel injury, her body sustained multiple organ systems failure, including severe loss of pulmonary function, renal failure and heart failure. She remained in the intensive care unit for over one month and was not discharged from the hospital until July 31, 2000. Plaintiffs allege in their petition that Mrs. Guy developed additional permanent injuries as a result of the mismanagement of her care, including lung and back problems.

Plaintiffs allege that Drs. Coignet and Bourgeois breached the applicable standard of care to Mrs. Guy by failing to conduct a complete evaluation of her condition. They allege that Dr. Coignet breached the standard of care by incorrectly noting that an ultrasound revealed gallbladder stones when no ultrasound was ever performed. Also, they allege that Dr. Bourgeois breached the standard of care by failing to confirm his diagnosis by review of available tests, and by unnecessarily removing a normal | ^gallbladder and causing injury to the small bowel during this surgery. Plaintiffs further allege that Dr. Bourgeois failed to aggressively diagnose the cause of Mrs. Guy’s prolonged postoperative problems, which caused further injury to Mrs. Guy. Plaintiffs conclude that based on these acts of commission or omission, Drs. Coignet and Bourgeois are liable for medical negligence and/or deviations from the standards of care.

This matter was submitted to a medical review panel, which rendered an opinion in favor of defendants on May 7, 2003. Plaintiffs then filed the present lawsuit against Drs. Coignet and Bourgeois and their insurer, St. Paul. A jury trial 'was held in this matter beginning on June 13, 2005. On June 17, 2005, the jury returned a verdict finding no breach of the appropriate standard of care on the part of either Dr. Coignet or Dr. Bourgeois. In accordance with this verdict, the trial court rendered judgment on June 24, 2005 dismissing plaintiffs’ suit against defendants. Following this judgment, plaintiffs filed a motion for judgment notwithstanding the verdict/motion for new trial which was denied by the trial court on August 6, 2005. Plaintiffs now appeal from this ruling.

Law and Discussion

In Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646, the Louisiana Supreme Court recently set forth the applicable standard of review from a jury verdict in a medical malpractice case:

Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirely and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. The appellate court must not rejweigh6 the evidence or substitute its own factual findings because it would have decided the case differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
935 So.2d at 650. (Citations omitted.)

In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La. R.S. 9:2794(A)

The Supreme Court of Louisiana discussed medical malpractice jurisprudence in Fusilier v. Dauterive, 00-151 (La.7/14/00), 764 So.2d 74, 79:

A physician is required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession and also to use reasonable care, diligence, and judgment. A physician is not required to exercise the highest degree of care possible; rather, his |?duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. In a medical malpractice action, the plaintiff has the burden of proving, by a preponderance of the evidence, (1) that the doctor’s treatment fell below the standard of care expected of a physician in his medical specialty; and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained, (citations omitted)

By this appeal, plaintiffs. contend that the jury erred when it failed to find that Dr. Coignet breached the standard of care based on evidence he made a mistake when he documented an ultrasound had been performed. Further, plaintiffs contend that the jury erred when it failed to find that Dr. Bourgeois breached the standard of care based on evidence that he did not see a gallbladder ultrasound or a radiology report on this patient prior to surgery and by failing to recognize the patient’s post surgical problems. Plaintiffs also urge this Court to address the issues of causation and damages which the jury did not reach.

Dr. Kenneth Coignet

Plaintiffs conténd that the record supports a conclusion that Dr. Coignet committed malpractice by incorrectly documenting in Mrs. Guy’s medical records that an ultrasound revealed the presence of gallbladder stqnes, when in fact an ultrasound was not performed. In support of this position, plaintiffs rely on the testimony of Mr. and Mrs. Guy, the testimony of Dr. Coignet, and the expert testimony of Drs. Bourgeois, Lee Sehon and G. Derek Weiss.

Monique Guy testified that on the date of her visit to Dr. Coignet’s office she was in extreme pain. She stated although she and her husband showed Dr. Coignet the prescription she was given for an ultrasound, she jsnever told Dr. Coignet she had an ultrasound done, nor did she hear her husband tell Dr. Coignet an ultrasound was performed.

Barry Guy stated he went to Dr. Coig-net’s office on June 3, 2000 with his wife who was in extreme pain and showed Dr. Coignet the ultrasound prescription given to them by the emergency room physician the previous night. Mr. Guy stated that neither he nor his wife told Dr. Coignet an ultrasound had been performed.

Dr. Coignet testified at trial that he made a notation in Mrs. Guy’s hospital record that an ultrasound was performed which indicated the presence of gallbladder stones. He stated he did not remember the Guys showing him a prescription for an ultrasound, but he stated that neither Mr. nor Mrs. Guy told him that an ultrasound had been performed. Dr. Coignet admitted in his testimony that no ultrasound had been performed and that he made a mistake in noting this in Mrs. Guy’s hospital records.

The medical review opinion stated as follows:

As to defendant, Dr. Kenneth Coignet, there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.

The reasons listed for this opinion were as follows:

1. There is a question of fact as to what conversation took place between Dr. Coignet and the patient regarding her emergency room visit.
2. Dr. Coignet made an adequate assessment, admitted the patient to the hospital, and made an appropriate surgical consultation.

|flAt trial, plaintiffs presented expert testimony to prove that incorrectly documenting an ultrasound in a patient’s hospital record is a breach of the standard of care. Plaintiffs relied upon the deposition testimony of Dr. Weiss, an expert in the field of general surgery, who stated that Dr. Coignet’s action in incorrectly noting in Mrs. Guy’s hospital records that an ultrasound had been performed constituted malpractice. Dr. Weiss stated that without the benefit of an ultrasound, it would be difficult for Dr. Bourgeois to make a definitive diagnosis as there could be a number of conditions causing plaintiffs symptoms.

However, defendants presented testimony that Dr. Coignet’s mistake in charting the ultrasound did not cause plaintiff to unnecessarily undergo gallbladder surgery. Thus, defendants contend that plaintiffs failed to meet their burden of proving medical malpractice against Dr. Coignet.

. Dr. Bourgeois testified that in making the determination to remove Mrs. Guy’s gallbladder, he relied on Dr. Coignet’s notation that an ultrasound revealed the presence of gallbladder stones. However, even without the ultrasound, Dr. Bourgeois testified that Mrs. Guy’s clinical presentation and history indicated the presence of gallbladder disease.

Dr. William Lee, defendant’s expert in the field of general surgery, testified that in light of Mrs. Guy’s clinical presentation, an ultrasound would have been the next thing to do in order to make a diagnosis. However, he stated that even without an ultrasound, Dr. Bourgeois decision to remove Mrs. Guy’s gallbladder was reasonable in light of the classic presentation of her symptoms which clearly indicated gallbladder disease.

Dr. James Sehon, a general surgeon and member of the medical review panel, testified at trial that an ultrasound should have been performed |inbefore Mrs. Guy was taken to surgery. Dr. Sehon also testified that Dr. Coignet made a mistake by indicating in Mrs. Guy’s hospital records that an ultrasound had been performed which showed the presence of gallbladder stones. However, Dr. Sehon testified that the medical review panel did not believe that Dr. Coignet committed malpractice in his treatment of this patient.

Plaintiffs argue that the evidence and testimony presented in this case as to Dr. Coignet clearly indicate that Dr. Coignet committed malpractice. Plaintiffs argue that Dr. Coignet’s mistake in charting the ultrasound is undisputed and they point to the fact that there is no evidence in the record which indicates Dr. Coignet’s actions were not negligent.

However, to prevail in a medical malpractice action, plaintiff must not only establish the standard of care and a breach of the standard of care, plaintiff must also establish that this conduct was the direct cause of plaintiffs injuries. Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272 (La.1991). When there is no direct evidence which establishes that the negligence or malpractice caused a plaintiffs injury, the plaintiff has failed to meet the burden of proof required by law. Coleman v.East Jefferson Gen. Hosp., 99-187 (La.App. 5 Cir. 9/28/99), 742 So.2d 1044 writ denied, 99-3070 (La.1/7/00), 752 So.2d 866.

In the present case, there is no dispute that Dr. Coignet incorrectly noted in Mrs. Guy’s hospital record that an ultrasound had been performed which revealed the presence of gallbladder stones. Dr. Coignet admitted that this was a mistake, and the evidence presented at trial indicates that this mistake constituted a breach of the standard of care. However, the evidence | presented in this case fails to indicate that this error caused Mrs. Guy’s injuries in this case.

Dr. Coignet testified that at the time he saw Mrs. Guy, she was very uncomfortable and screaming and vomiting continually. He stated that he performed a physical examination of her, and that he believed she was suffering from gallbladder disease. He stated that he had previously treated many patients with gallbladder disease, and that Mrs. Guy’s symptoms were consistent with such a diagnosis.

There was also physical evidence presented at trial that Mrs. Guy’s gallbladder was in fact diseased. Dr. Sehon testified that according to the surgical report from Dr. Bourgeois, the gallbladder was swollen, which indicated that it was diseased. Further, Dr. Sehon stated that the pathology report showed evidence of chronic inflammation and chronic cholecystitis which showed that the gallbladder was diseased. Dr. Sehon also testified that Mrs. Guy’s symptoms and the results of her lab work prior to surgery indicated the presence of gallbladder disease. Based on this evidence, Dr. Sehon concluded that the gallbladder surgery performed on Mrs. Guy was necessary in this case.

The record also contains the testimony of Dr. Eric Rau, an expert in general surgery and a member of the medical review panel. When asked about Dr. Coig-net’s mistake in indicating an ultrasound had been performed, Dr. Rau testified as follows:

I don’t think the mistake caused Dr. Bourgeois to take her to surgery. I think the mistake may have offered some additional information that Dr. Bourgeois may have used to make a decision for surgery. But honestly, if this lady would have had a normal ultrasound, she probably still would have gone to surgery, in my eyes, because her symptoms were consistent with gallbladder disease.

|iaThe evidence presented in this case supports the jury’s finding that plaintiffs failed to meet the requisite burden of proof that Dr. Coignet’s actions caused plaintiffs injuries herein. The jury heard all of the testimony and evaluated the evidence presented at trial, and determined that Dr. Coignet’s charting error did not cause an unnecessary surgery to remove Mrs. Guy’s gallbladder. Rather, the evidence supports a finding that surgery performed on Mrs. Guy was appropriate despite the lack of a ultrasound confirming the condition.

Although the opinion of Dr. Weiss conflicts with the other expert testimony presented, the jury apparently chose to credit the testimony of defendants’ experts rather than that of Dr. Weiss. We have carefully reviewed the record in this case, and we find a reasonable factual basis exists for the jury’s determination that Dr. Coig-net’s actions did not constitute malpractice. We fail to find the determination of the jury to be manifestly erroneous.

Dr. Brian Bourgeois

With regard to the actions of Dr. Bourgeois, plaintiffs first contend that the

jury erred in failing to find that Dr. Bourgeois breached the standard of care by taking Mrs. Guy to surgery without first seeing the ultrasound or a report of an ultrasound. In support of this argument, plaintiffs rely on the testimony of Drs. Lee, Sehon and Weiss who testified that the standard of care required an ultrasound to be done prior to surgery. Plaintiffs further contend that the jury erred in failing to find that Dr. Bourgeois breached the standard of care by failing to timely recognize and provide appropriate treatment for Mrs. Guy’s post surgical problems.

1 isThe medical review panel found as follows with regard to Dr. Bourgeois:

1. The judgment to perform a chole-cystectomy based upon the patient’s presenting signs and symptoms was reasonable.
2. The patient may have experienced an unfortunate but known complication of cholecystectomy, intra-ab-dominal infection. Her treatment following both surgeries was within the standard of care.

At trial, Dr. Bourgeois testified that at the time of his initial examination of Mrs. Guy, he was under the impression that an ultrasound had been performed indicating the presence of gallstones. However, he further testified that given Mrs. Guy’s clinical presentation and symptoms, along with his physical examination, he believed that gallbladder surgery was indicated on this patient. He believed that her extreme pain and vomiting was caused by a gallbladder stone in the neck of the gallbladder. Dr. Bourgeois also testified that following surgery, he found evidence of a stone in Mrs. Guy’s gallbladder.

Plaintiffs presented the videotaped deposition of Dr. G. Derek Weiss who stated he reviewed all of the medical records in this case as well as the depositions of Mr. and Mrs. Guy, Drs. Bougeois, Coignet and Lee. Dr. Weiss determined that the standard of care in performing gallbladder surgery requires the surgeon to view the ultrasound and radiology report. He stated that without an ultrasound, Dr. Bourgeois had no way of knowing whether a stone was present or the nature and extent of the patient’s abdominal condition. Dr. Weiss opined that by taking Mrs. Guy to the operating room 114without viewing the ultrasound or radiology report, Dr. Bourgeois committed “clear malpractice.”

Dr. William Lee, defendant’s expert in general surgery, testified at trial that although an ultrasound should have been performed prior to surgery, it was reasonable for Dr. Bourgeois to rely on the statement of Dr. Coignet that an ultrasound had been performed. However, he also stated that it is not improper to take a patient to surgery based on their clinical presentation alone. In fact, Dr. Lee stated he operated on many patients where the ultrasound is negative for the presence of gallbladder stones, and he invariably finds gallbladder disease based on the clinical presentation alone.

Dr. Sehon testified that it was reasonable for Dr. Bourgeois to rely on the notes in the patient’s hospital records that an ultrasound had been performed. However, Dr. Sehon also testified that based on Mrs. Guy’s presenting symptoms, as well as the operative report, the pathology report, and other medical records including the laboratory report indicating an elevated lipase level, gallbladder surgery was indicated on this patient. Dr. Sehon testified that Mrs. Guy’s symptoms were very typical of gallbladder disease.

Defendants also presented the testimony of Dr. Eric Rau, an expert in the field of general surgery and a member of the medical review panel. Dr. Rau testified that it was reasonable for Dr. Bourgeois to rely upon Dr. Coignet’s note regarding the ultrasound as a piece of information in the treatment of this patient. Dr. Rau testified that he absolutely disagreed with the belief that the standard of care required an ultrasound to be done prior to surgery. He stated that even if Mrs. Guy had presented with a normal | ^ultrasound, she should have gone to surgery, because all of her symptoms were consistent with gallbladder disease.

The record in this case indicates that the deposition testimony of Dr. Weiss conflicts with the testimony of the remaining physicians who testified at trial in this case. Where the testimony of expert witnesses differs, it is the responsibility of the trier of fact to determine which evidence is most credible. The jury in this case heard the testimony of all of the expert witnesses, and apparently chose to credit the trial testimony of Drs. Lee, Sehon and Rau over the deposition testimony of Dr. Weiss. Our review of the record in its entirety indicates that there is a reasonable basis for the factual findings of the jury. We thus fail to find manifest error in the jury’s determination with regard to the actions of Dr. Bourgeois.

Plaintiffs next contend that the jury erred when it failed to find that Dr. Bourgeois breached the standard of care by failing to timely recognize Mrs. Guy’s post surgical problem. Plaintiffs contend that Dr. Bourgeois failed to note the significance of the “markedly abnormal” bands on a white cell count differential, which were consistent with an effort on the part of Mrs. Guy’s body to fight off a “severe intra-abdominal insult.”

Dr. Weiss testified that the markedly elevated bands on June 5, coupled with the patient’s post operative symptoms including pain, nausea, vomiting and abdominal distention, indicated an intra-abdominal infection. Dr. Weiss opined that based on this evidence, Mrs. Guy should not have been discharged on June 5, and in his opinion, Mrs. Guy’s continuation of symptoms required re-operation by June 7. Dr. Weiss stated that Dr. Bourgeois violated the standard of care by not re-operating on Mrs. Guy prior to June 12.

|inThe testimony of defendant’s general surgery expert, Dr. Lee, indicated that Dr. Bourgeois’ decision to discharge Mrs. Guy on June 5, 2000 was reasonable and appropriate and in accordance with the acceptable standards of care. Dr. Lee also testified that when Mrs. Guy returned to the hospital on June 6, 2000 with additional complaints, Dr. Bourgeois’ diagnosis of post-operative ileus was a reasonable diagnosis. Further, Dr. Lee felt that Dr. Bourgeois’ decision not to order a CT scan prior to June 12, 2000 was reasonable and appropriate because Mrs. Guy’s condition became much worse on that date.

Dr. Rau testified that Dr. Bourgeois’ treatment of Mrs. Guy during her second hospitalization was reasonable and appropriate. He relied on Dr. Bourgeois’ notes of his physical examination of the patient that her abdomen was benign and he found no tenderness on June 9, 2000. Dr. Rau was questioned by plaintiffs’ counsel as to whether the lab results showing elevated bands should have caused Dr. Bourgeois to be concerned with his diagnosis of postoperative ileus. Dr. Rau testified that the most important fact in determining a patient’s medical condition in small bowel injuries is with the patient’s exam. Dr. Rau found that Dr. Bourgeois’ notes from these exams indicates that his course of treatment was reasonable under the circumstances.

Dr. Charles Thomas, a surgeon who practiced with Dr. Bourgeois’ group, testified that he examined Mrs. Guy on June 7, 2000, the day after her second hospital admission. Dr. Thomas stated he agreed with Dr. Bourgeois’ diagnosis of post-operative ileus, as he did not find her condition on that date to be abnormal following a laparoscopic cholecystectomy. Dr. Thomas also found that the elevated bands in the patient’s white blood count |17did not definitively indicate that surgery was necessary. He stated that the laboratory findings were a small part of the overall picture of the patient’s medical condition.

The record in this case supports the jury’s determination that Mrs. Guy’s extended hospital stay and additional surgeries were not the consequence of any malpractice on the part of Dr. Bourgeois. All of the expert testimony in this case, including the testimony of Dr. Weiss, indicates that a perforated bowel as suffered by Mrs. Guy in this case is a known and accepted risk of gallbladder surgery, and not necessarily the result of negligence or malpractice.

Plaintiffs contend that defendants’ witnesses did not take into account all of the nurses’ evaluations of the patient, despite the fact that the nurses monitored the patient 24 hours a day, while Dr. Bourgeois saw Mrs. Guy only intermittently over the course of several days. However, the nurses’ notes are only part of the entire clinical presentation of this patient, and Dr. Thomas specifically testified that nurses’ observations often differ from a physician’s examination. Dr. Thomas, who also examined Mrs. Guy during her second hospitalization, testified that nothing in the nurses’ notes indicated to him that Mrs. Guy had a “surgical abdomen” prior to June 12, 2000, or that Dr. Bourgeois was negligent in the course of treatment of Mrs. Guy during this time period.

Although the record contains conflicting expert testimony with regard to Dr. Bourgeois’ post-surgery treatment of Mrs. Guy, the jury chose to credit the testimony of defendants’ experts over that of plaintiffs’ expert. Drs. Sehon, Lee, Rau and Thomas each testified that Dr. Bourgeois properly monitored and treated Mrs. Guy post-op-eratively. Based on this testimony |1Ras well as the other physical evidence regarding plaintiffs treatment, we find there is a reasonable factual basis in the record for the jury’s determination that Dr. Bourgeois did not violate the applicable standard of care in treating Mrs. Guy. We have carefully reviewed the entire record in this matter and we fail to find the jury’s factual determinations to be manifestly erroneous.

Conclusion

Accordingly, for the reasons assigned herein, the judgment of the trial court rendered in accordance with the verdict of the jury is hereby affirmed. Plaintiffs are to bear all costs of this appeal.

AFFIRMED.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Joseph “Jody” DUPLICHAN, Jr.
    No. KA 2006-852.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Joseph “Jody” Duplichan, Jr.
    Douglas L. Hebert, Jr., District Attorney, Sherron Ashworth, Assistant District Attorney, Thirty-Third Judicial District, Oberlin, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hOn November 3, 2005, the State filed an indictment charging Defendant, Joseph “Jody” Duplichan, Jr., with two counts of indecent behavior with a juvenile, in violation of La.R.S. 14:81. One count involved a juvenile victim born in 1993, and the other involved a victim born in 1991. Pursuant to a State motion, the trial court held a Prieur hearing on February 14, 2006; it granted the motion in part and denied it in part.

The jury was selected on February 21, 2006; on February 22, it found Defendant guilty as charged on both counts. Defendant filed a motion for new trial, which the court denied on April 18. The court conducted a sentencing hearing on April 26 and sentenced Defendant to seven years at hard labor on each count. The sentences are to run consecutively with one another and with Defendant’s sentence from a pri- or conviction.

Defendant now appeals his convictions and sentences, assigning three errors.

FACTS

In late September of 2005, Defendant was staying at the home of his niece, Rebecca Fontenot, due to the after-effects of Hurricane Rita. Other relatives were also staying at the residence because Mrs. Fontenot and her husband had a generator. The Fontenots had three daughters: sixteen-year-old Monica, fourteen-year-old M.S., and nine-year-old E.C. Mrs. Fonte-not’s sister, Melissa Gauthreaux, and her twelve-year-old daughter, A.P., were also among those staying at the residence.

On September 28, 2005, people had gathered at the Fontenot home, and many of the adults were drinking alcoholic beverages. Gradually, various individuals left | gthe gathering to go to sleep. Most of the girls went to bed by approximately 10:00 p.m., but Monica did not go to bed until after midnight. Shortly before 11:00 p.m., Defendant’s sister, D.S. (the victims’ grandmother), went inside the house to go to sleep; before going to bed, she took some Benadryl.

When twelve-year-old victim A.P. entered the house, D.S. was already asleep on a mattress in the living room. Monica testified that she went to bed at about 2:00 a.m. and that D.S., A.P., M.S., and E.C. were all in bed by then. Fourteen-year-old victim M.S. testified that she went to bed between 10:00 p.m. and 10:30 p.m.

A.P. was sleeping near her grandmother, D.S., and lying face-down. She woke up because someone was rubbing her back. Initially, she thought it was her mother, but she realized it was Defendant. He also began rubbing her buttocks underneath her clothes, and he tried to put his hands in her shirt. After she told him to stop “about five times,” he finally did.' Defendant then left the room, and A.P. hid behind a recliner.

Monica testified that before she had fallen completely asleep, she noticed her bedroom door had been opened. She saw a male figure and thought it was her grandfather; however, Defendant spoke to her and she recognized his voice. He left and shut the door behind him.

According to M.S.’s testimony, she was asleep face-down in her bedroom but began to awaken to the sensation of someone rubbing her back. He then starting rubbing her buttocks inside her pants but over her underwear. She woke up fully when she felt him move his hands inside her underwear and “towards the front,” toward her “private area.” She told him to stop, and he got up and left the room. Very soon after he left, A.P. came into the room, crying, and each told the other what had happened. A.P. testified that when she saw Defendant reenter the living room 1 sarea, she went to M.S.’s room. According to both the girls’ testimonies, they believed Defendant was still inside the residence, so they climbed out of a window and told Mrs. Fontenot what had happened. Mrs. Fontenot testified there were only two doors leading out of the house. A diagram admitted pursuant to her testimony shows that both doors lead out of the family room, on the other side of the house from where the girls were.

The family contacted police, who arrested Defendant.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there are two errors patent.

First, the trial court imposed indeterminate sentences. The Defendant was convicted of two counts of indecent behavior with a juvenile. The penalty provision for that offense provides for the sentence to be imposed with- or without hard labor. La.R.S. 14:81(C). The trial court in the present case imposed a sentence of seven years on each count without specifying whether the sentences were to be served with or without hard labor. Thus, the sentences imposed by the trial court are indeterminate and should be vacated. The case should be remanded for resentencing and the trial court instructed to specify whether the sentences are to be served with or without hard labor. See State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166.

Additionally, we note that the trial court failed to deny the Defendant eligibility for diminution of sentence. Louisiana Revised Statutes 15:537(A) requires diminution of sentence be denied to a person who is convicted of or pleads guilty to a sex offense, including indecent behavior with a juvenile. Recently, this court addressed Rthis issue in State v. S.D.G., 06-174, pp. 4-5 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, 1247:

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated rape and aggravated incest. Here, the trial court failed to deny the defendant diminution eligibility under La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court stated:
We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.
Here, the trial court’s failure to deny diminution of sentence renders the defendant’s sentences illegally lenient. Therefore, we amend the defendant’s sentences to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). We also instruct the trial court to make a notation in the minutes reflecting the amendment.

Accordingly, upon remand for resen-tencing, the trial court is instructed to deny the Defendant eligibility for diminution of sentence on both counts of indecent behavior with a juvenile.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the evidence against him at trial was insufficient to support the conviction. The analysis of such a claim is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the Irrespective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

On appeal, Defendant argues the verdicts of indecent behavior with juveniles should be vacated, and the verdicts of attempted indecent behavior with juveniles entered. The elements of indecent behavior with juveniles are set forth in La.R.S. 14:81(A), which states:

Indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.

Defendant argues the State failed to prove that Defendant completed any acts to arouse or gratify sexual desire. In support of this assertion, Defendant states:

In the light most favorable to the prosecution, the State’s evidence did not show that the acts to arouse or gratify sexual desire were completed. The responsive verdicts of attempted indecent behavior are required.
A.P. said that Jody rubbed her back up and down, but did not attempt to go lower than her butt. She emphatically said he did not try to touch her private area. M.S. said that she slept through a back rub and the touching of her butt, and only woke when Jody’s hand was at the side of her hip.

In regard to A.P., we note the relevant colloquy in full:

Q You were woken up at some point during that night?
A Yes, sir.
Q Tell the jury why you were waken up?
A Because somebody was rubbing my back. At first, I thought that it was my mom.
lfiQ How were they rubbing your back?
A What do you mean?
Q Did they just rub it one time or was it in a circular motion or how was it?
A Like just up and down my back.
Q How many times do you think they did that up and down your back?
AI really don’t know.
Q Okay. So at first you thought that it was your mother?
A Yes, sir.
Q Okay. And did you find out who it was actually touching you?
A Yes, sir.
Q And how did you find out who it was that was actually touching you?
AI woke up.
Q Okay. And what happened when you woke up?
A I turned over to see who it was. It was Jody.
Q Did he only touch you on your back.
A No, sir.
Q Where else did he touch you?
A On my back side.
Q On your back side? Are you talking about your buttocks? Your butt area.
A Yes, sir.
Q Did he touch you there on top of your clothes or underneath your clothes?
A Underneath.
Q How did he touch you on your butt area?
|7A What do you mean?
Q Did he rub your butt?
A Yes, sir.
Q Did you ask him to stop?
A Yes, sir.
Q At any point did he try to touch you any other way? Did he try to put his hand on your leg or anything like that?
A He tried to put his hand in my shirt.
Q He tried to put — Say that again. I’m sorry.
A He tried to put his hand down my shirt.
Q Did he try to put his hands up your pants leg or anything like that?
A No, sir.
Q When you told him to stop, did he?
A No, sir.
Q He kept doing it more?
A Yes, sir.
Q What caused him eventually to stop?
A I told him to stop. After about five times, he finally did.

We find A.P.’s testimony showed Defendant’s acts of rubbing the young girl’s back and buttocks were completed acts. In the context of the situation, it is clear Defendant rubbed the girl for his own sexual arousal. Although he apparently did not complete the act of reaching inside her shirt, his attempt to do so further supports that his other, completed acts were sexual in nature.

In regard to M.S., we note the relevant passages from the transcript:

Q Okay. Did you sleep all of the way until the next morning in your bedroom or not?
IrA No, sir.
Q What happened?
A I woke up when I felt like somebody moving towards the front of my pants.
Q Did you become aware of who that was touching you?
A Not until I woke up like when he was moving his hands towards the front. That’s whenever I woke up.
Q Okay. And when you say he was moving his hands towards the front, what are you talking about?
A Like toward my private area.
Q Was the hand inside or outside our underwear?
A Inside.
Q This was on your bare skin?
A Yes, sir.
Q Did anybody rub your back before this happened?
A Yes, sir.
Q Tell me, if you wouldn’t mind, the sequence of what happened as far as you recall. Someone rubbed your back?
A Yes, sir. And he started rubbing my bottom, like in my pants, but it was on top of my underwear. Then he put his hands in my pants and he started moving towards the front. And that’s when I woke up and I told him to stop.
Q Okay. At what point did you say that you were aware that it was Jody Duplichan that was doing this to you?
A When like he was moving his hands toward the front.
Q Did you tell him to stop?
A Yes, sir.
Q Did he stop?
A Yes, sir.
li)Q Was he loud when.he was doing this or was he quite [sic] or how would you describe him?
A He was quite [sic].

Again, the testimony demonstrates Defendant rubbed a girl’s buttocks in a context of sexual advances. Since he physically touched both girls, it is clear the acts were completed. Thus, Defendant’s argument lacks merit as to both victims, and the convictions are affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues he received ineffective assistance of counsel. In State v. James, 95-962, pp. 4-5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465, this court explained:

In order to prove that counsel was ineffective, the defendant must meet the two-pronged test enunciated by the Supreme Court. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that this deficiency prejudiced the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).

Also, this court often defers such claims to the post-conviction process, so the record can be developed in regard to the issue at hand. However, this court will address ineffective assistance claims on appeal, when the record is sufficient to analyze the claim. State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62.

Defendant argues counsel was ineffective in three major areas:

1) She failed to file a motion to suppress Defendant’s pre-trial invocation of his right to remain silent and failed to object when it was referred to at trial.
2) She failed to challenge the use of family member Melissa Gautreaux’s testimony, regarding a prior bad act that Defendant allegedly committed against her and did not ask for special jury instructions on the matter, at trial.
[ 103) She failed to file a motion to reconsider sentence. [We find this part of the assignment is moot, due to the error patent regarding the sentences.]

Regarding the reference to Defendant’s invocation of his right to silence, we note the relevant colloquy:

Q Did you attempt to take a statement from Mr. Duplichan?
A Not at that time. Not at the residence.
Q Let me ask you, at the residence, were you able to talk with Mr. Du-plichan and observe Mr. Duplichan?
A Yes, sir, I observed him.
Q Was he able to stand on his own free will?
A He was in a unit.
Q You said that you didn’t ask him any questions at that time, correct?
A No, sir.
Q When did you ask him questions?
A When we got to the Kinder PD.
Q Was — When you would ask him questions, would he give appropriate responses indicating that he understood what you were saying to him?
A Yes, sir.
Q And could you please describe his state? How did he seem to you?
A Mr. Duplichan, you could smell an alcoholic beverage coming from him, but you know, he was in pretty good standing. When I asked questions, he would answer with no problem.
Q And did he make any kind of statement in conjunction with any kind of statement that you were trying to obtain from him?
A At the PD?
Q Yes, sir.
InA Yes.
Q What did he say?
A One of the things that he said, after he sat there a while and I read his Miranda Warning rights to him, he stated that he could be backing twenty years if he would say anything.
Q So at that time, he invoked his Miranda Rights and didn’t say anything?
A Right.
MR. GREEN:
May I approach, Your Honor?
THE COURT:
Yes, you may.
Q Detective Courville, I’m going to show you what has been marked as State-7. Would you look at that? (The witness complies.) Do you recognize that, sir?
A Yes, sir.
Q And what is that?
A This is a Miranda Warning so that people will know what their rights are.
Q Okay. And do you go over that form with the defendant or how does that form work in conjunction with an investigation?
A We go over it with them and we read it to them and make sure that they understand it.
Q Okay. And was that form gone over by an officer to the defendant?
A Yes, sir, it was.
Q And which officer went over that form with the defendant?
A It was myself.
Q Okay. Did Mr. Duplichan indicate whether or not he understood what his rights were?
|12A He just basically stated that he wasn’t saying nothing.
Q Okay. And did he sign anything on that form?
A No, sir.
Q Did he indicate to you that he understood what he was doing when he was invoking his rights?
A Yes, sir.

While Defendant’s argument is couched as an argument that trial counsel should have protected him from the State’s reference to his post-arrest silence, the true thrust of his argument is counsel should have contested the State’s use of his post-arrest statement.

The State’s brief acknowledges that Defendant invoked his right to remain silent after being Mirandized, but argues “[a]ll statements up to and including this statement were admissible as this statement was made freely and voluntarily and prior to [Defendant] invoking his rights.”

We find the colloquy cited above shows Defendant made the contested statement contemporaneously with his invocation of his right to remain silent. Thus, we find the State’s reference to Defendant’s remark would pose no constitutional violation, since it is well-settled that the right to remain silent may be waived.

It is also well-established that even after a Defendant has invoked his right to silence, it may be waived later, without offending constitutional protections. The supreme court has explained:

When a defendant exercises his privilege against self-incrimination the validity of any subsequent waiver depends upon whether police have “scrupulously honored” his right to remain silent. Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Whether police have “scrupulously honored” an accused’s right to silence is determined on a case-by-case basis under the totality of the circumstances. Id.; State v. Brooks, 505 So.2d 714, 722 (La.1987); State v. Harper, 430 So.2d 627, 633 (La.1983); State v. Thucos, 390 So.2d 1281, 1285 (La.1980); State v. Manning, 380 So.2d 46, 50 (La.1980). 113Factors going into the assessment include who initiates further questioning, although, significantly, police are not barred from reinitiating contact, Mosley, 423 U.S. at 103-104, 96 S.Ct. 321; cf. Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (invocation of right to counsel during custodial interrogation has greater protection than invocation of right to remain silent, as police may not thereafter question defendant unless he initiates further contact); whether there has been a substantial time delay between the original request and subsequent interrogation; whether Miranda warnings are given before subsequent questioning; whether signed Miranda waivers are obtained; and, whether the later interrogation is directed at a crime that had not been the subject of the earlier questioning. Michigan v. Mosley, 423 U.S. at 105, 96 S.Ct. 321; Brooks, 505 So.2d at 722; Harper, 430 So.2d at 633.

State v. Taylor, 01-1638, pp. 6-7 (La.1/14/03), 838 So.2d 729, 739, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

Clearly, the analysis discussed in Taylor would not apply in the present case because the remark at issue was contemporaneous with, rather than subsequent to, Defendant’s assertion of his right to remain silent. We find the Defendant’s statement was a spontaneous utterance. Such utterances have been held admissible in various contexts involving Miranda and constitutional protections. For example, we note a recent analysis by this court:

At the hearing on the motion to suppress, Detective Roberts testified that she informed the defendant of his rights and the defendant indicated he had nothing to say to her. No waiver of rights form was presented to the defendant. However, Detective Roberts indicated the defendant understood his rights. Detective Roberts later told the defendant what he was being charged with in Louisiana and explained the extradition process. During that time, the defendant told Detective Roberts, “I took that truck, but I didn’t use a weapon. I don’t know where they got that from, but I didn’t have a weapon.”
Detective Roberts testified that the defendant appeared upset and looked tired. However, no threats, promises, or force was used to obtain a statement from him.
The defendant testified that between November 11 and 12, he had used a little more than an ounce of crack cocaine, three ecstasy pills, and five zanbars and drank “better than” a fifth of Jack Daniels or Evan Williams. When he was questioned by Detective Roberts, he said he was “dead to the world” and only understood “something about an | ^extradition process.” He had no recollection of Detective Roberts reading his rights and testified that he did not knowingly waive his rights. The defendant further testified that he clearly recalled telling Detective Roberts that he did not want to make a statement.
In ruling that the statement made to Detective Roberts was admissible, the trial court stated the following:
As she began to inform him of the process for extradition, he volunteered the following statement, that he did not use a — -that he took the truck but did not use a weapon.
There was — Mr. Pitre then gave testimony to the effect that he, in fact, decided not to give a statement and denied making a statement. There’s no question that Mr. Pitre was aware of his rights and exercised those rights with Ms. Roberts not to give a statement, at which time she ceased her interview about the substantive nature of the offense.
The fact that he volunteered this information to her as she was advising him about the extradition procedure does not render that an involuntary statement, and, therefore, the Court rules that the statement made to Detective Lori Roberts of the Houston Police Department will be admissible.
The defendant may have invoked his right to remain silent; however, Detective Roberts did not violate that right by informing the defendant of what he would be charged with in Louisiana and the extradition process. The defendant waived his right to remain silent when he spontaneously blurted out the incul-patory statement. See State v. Williams, 99-2355 (La.App. 4 Cir. 12/13/00), 776 So.2d 604, writ denied, 01-1829 (La.4/12/02), 812 So.2d 667. Additionally, Detective Roberts never testified that the defendant was nodding out or that he was incoherent. She did, however, testify that he was tired. Accordingly, the trial court applied the appropriate standard and its ruling is correct.

State v. Pitre, 05-405, pp. 4-5 (La.App. 3 Cir. 3/1/06), 924 So.2d 1176, 1180-81. (emphasis added).

We also note an analysis by the second circuit:

Defendant asserts that the trial court erred in allowing the state to introduce his statement. Once arrested, defendant requested an attorney. The arresting officers took him to the detective office. While waiting in the office, defendant made a gratuitous statement implicating himself as the perpetrator of the attempted armed robbery. Defendant admits that |1fithe statement was not made in response to interrogation, but claims that if he had not been put in such a position, he would never had made the statement.
Once an individual in custody expresses a desire for an attorney, at any stage in the process, further interrogation must cease until an attorney has been made available to him, unless the suspect initiates further communication, exchanges or conversation with the police. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); State v. Tilley, 99-0569 (La.07/06/00), 767 So.2d 6, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001); State v. Koon, 96-1208 (La.05/20/97), 704 So.2d 756, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997). Police are not obligated to ignore spontaneous and unsolicited statements by someone in custody, as long as those statements do not result from police-initiated custodial interrogation or questioning “reasonably likely to elicit an incriminating response.” State v. Tilley, supra; State v. Ross, 95-1798 (La.03/08/96), 669 So.2d 384, appeal after remand, 98-0283 (La.App. 4th Cir.09/08/99), 743 So.2d 757. Nor does a previous assertion of the right to counsel bar admission of such statements. Id.
In this case, there was no behavior by police officers that constituted direct questioning, nor were there circumstances that approached the functional equivalent of interrogation. Defendant admitted that his incriminating remarks were made before interrogation actually took place and were made gratuitously, not in response to a question by Officer Grant. There is no merit to defendant’s argument that the statement should be suppressed simply because he was first taken to a detective’s office rather than being taken directly to the booking area. There is no evidence that defendant was held in the detective’s office for an undue or excessive amount of time, nor is there evidence that he was coerced or pressured in any way to make his statement. Officer Grant had not engaged defendant in conversation at the time the statement was made, nor did he ask defendant any questions after he asserted his right to counsel. We therefore find no abuse of the trial court’s discretion in its denial of the motion to suppress defendant’s inculpatory statement.

State v. Williams, 36,456, pp. 5-6 (La.App. 2 Cir. 10/4/02), 827 So.2d 1286, 1289-90, writ denied, 02-3071 (La.9/19/03), 853 So.2d 633 (emphasis added).

While neither of the two cases just cited is on all fours with the present one, they show jurisprudential support for the conclusion that, in the instant case, Defendant’s spontaneous statement was admissible. Thus, even if his trial counsel’s 11fiperformance was deficient pursuant to Strickland, it did not prejudice his case. Thus, his first argument under this assignment lacks merit.

Defendant’s second argument under this assignment is that trial counsel failed to challenge Melissa Gautreaux’s testimony regarding a prior bad act that Defendant allegedly committed against her and did not ask for special jury instructions on the issue.

As the State points out, Defendant’s trial counsel did contest the admissibility of Gautreaux’s testimony, albeit unsuccessfully, in a Prieur hearing held on February 14, 2006. Further, we note that a Prieur hearing is not required for evidence admitted pursuant to La.Code Evid. art. 412.2. State v. Williams, 02-1030, 02-898 (La.10/15/02), 830 So.2d 984. Thus, Defendant’s argument that counsel failed to contest the “other crimes” evidence pre-trial lacks merit. However, the State does not address Defendant’s complaint that counsel failed to request a special jury instruction regarding Gautreaux’s testimony. Our review of the record does not show any request for a special jury instruction at the Prieur hearing or at trial. Further, the court gave no such instruction, although it did give a requested instruction regarding intoxication.

In applying the two-part Strickland analysis previously discussed, the issue of whether counsel’s performance was deficient is not easily determined. Pursuant to La.Code Evid. art. 105 and State v. Brown, 03-1747 (La.App. 3 Cir. 5/12/04), 874 So.2d 318, writ denied, 04-1413 (La.11/8/04), 885 So.2d 1118, the trial court would have been required to give an instruction limiting the other crimes evidence to its proper scope. In the absence of such a request, failure to make such an instruction 117does not constitute reversible error. La.Code Evid. art. 105. Thus, counsel failed to obtain a limiting instruction and also failed to preserve the issue for appeal.

Since trial counsel did seek and obtain a special instruction regarding intoxication, it is possible that counsel made a strategic decision to concentrate on the intoxication issue and thus elected not to seek any other special instructions. When reviewing matters of trial strategy, this court has noted:

This Court has recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).

State v. Schexnaider, 03-144, p. 18 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 462 (quoting State v. Griffin, 02-1703, pp. 9-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ denied, 03-809 (La.11/7/03), 857 So.2d 515).

On the other hand, this court will recognize deficient performance on appeal. See, e.g., State v. Roberson, 05-1206 (La.App. 3 Cir. 3/1/06), 924 So.2d 1201. (Defense counsel failed to contest inadmissible evidence). The court suggests it is questionable whether foregoing an instruction on other crimes evidence would ever be a viable trial strategy, given the potential prejudice attendant with other crimes evidence. Thus, the court determines counsel’s performance was deficient.

Since the court has determined trial counsel’s performance was deficient, pursuant to Strickland, we will discuss whether said performance prejudiced Defendant such that counsel was constitutionally ineffective. Counsel’s errors can be held non-prejudicial for Strickland purposes when the State has presented a strong case, much as in a standard harmless error review. See, e.g., State v. Busby, 94-1354 (La.App. 3 Cir. 4/5/95), 653

So.2d 140, writ denied, 95-1157 (La.9/29/95), 660 So.2d 854.

As the Busby court discussed:

In his first argument, the defendant contends his trial attorney was ineffective because he failed to move for a mistrial when the prosecutor dismissed one of the counts against the defendant. The state’s entire case had been presented, so the defendant reasons that the evidence already adduced as to the dismissed count was “other crimes” evidence which prejudiced the jury’s consideration of the remaining counts.
[E]ven if the defendant in that case had been prejudiced by the dismissal, the error was harmless beyond a reasonable doubt, because the state had presented sufficient evidence to prove each of the other counts. Thus, each of the remaining counts was able to stand on its own, without evidence from the dismissed count. Adopting this reasoning, the record suggests that any error in this case is also harmless.
As the defendant has neither raised nor briefed insufficiency of the evidence as an error, we will not conduct a full-blown review. However, some analysis is required to assess possible prejudice to the defendant.
The state’s case as to count one and count two was supported by the testimony of the two young victims, who graphically described the defendant’s actions, e.g., one victim’s testimony clearly described forced fellatio. Their testimony, in turn, was supported by evidence adduced from the examining physician and the investigating officers. Sufficient evidence was presented to prove the elements of the charged crimes beyond a reasonable doubt.... [A]any prejudice resulting from the dismissal of count three was harmless beyond a reasonable doubt. Since defendant was not entitled to a mistrial, his attorney was not ineffective in failing to move for a mistrial.

Id. at 144-46 (citations omitted).

Thus, the court’s ultimate decision on this assignment of error hinges on its view of the strength of the State’s case. As discussed earlier, in the court’s review of the sufficiency of the evidence, the State adduced testimony from both victims. Each girl identified Defendant as her assailant and described his actions, which were of a |iatype intended to arouse or gratify his sexual desires, as proscribed by La.R.S. 14:81. Also, the State presented testimony from Rebecca Fontenot, who testified that after the girls had entered the house to go to bed, she noticed Defendant missing from the group of adults:

Q At any point in time while you were out there with those individuals did you see Jody Duplichan leave that company or that crowd out there?
A Yes, I did. Earlier that evening we had pretty much all took turns going and jumping into my pool and cooling off because it was humid from the hurricane. And when I did see him get up, I didn’t really pay attention to how long he was gone, but I did notice that some time had passed. I made the comment to my sister, “I hope he’s not floating in my pool.” It was a joking comment.
Q Now where would your pool be in connection with this house? Where would the pool be located?
A The square around the patio.
Q Right.
A It’s right behind the patio, inside that square.
Q All right. So you thought that he had gone to the pool and you testified that he had gone from some time?
A I’d say at least twenty minutes.
Q At least twenty minutes? What happened after you noticed that he was gone?
A Well, I made that comment to my sister. Maybe about five minutes later, I said, “I’d better get up and go and check because he might really be floating the pool.” A few minutes after that, that’s when the girls come outside.
Q Okay. When you say that the girls came outside, what girls are we talking about?
A My niece, [A.P.], and my daughter, [M.S.],

Melissa Gathreaux testified similarly.

| gnThe Defendant suggests that the State’s time table was unclear and that there were inconsistencies in the two girls stories. However, all of this testimony was presented to the jury.

The court finds the victims’ testimonies were very credible, and therefore, counsel’s failure to request special instructions did not prejudice Defendant’s case for purposes of Strickland. For this reason Defendant’s argument lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

This assignment, which attacks Defendant’s sentence, is moot because of the errors patent already discussed.

CONCLUSION

Defendant’s convictions are affirmed; however, his sentences are vacated as indeterminate, and the case is remanded for resentencing. The trial court is instructed to specify whether the sentences imposed are to be served with or without hard labor. Additionally, this court will instruct the trial court to deny the Defendant eligibility for diminution, of sentence on both counts of indecent behavior with a juvenile.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING WITH INSTRUCTIONS.

      . The juvenile victims and some relatives are identified by their initials, pursuant to La.R.S. 46:1844(W). The victim M.S.’s sister, Monica, is referred to by her first name, to avoid confusion between the two girls. Defendant differentiates between the two by using triple sets of initials, but the record source for each girl's middle initial is not clear.

      . The trial court did exclude evidence regarding Defendant’s prior act of raping an elderly woman.


text:
    Roy E. EVANS, et al. v. Derrick D. SMITH, et al.
    No. CA 2006-974.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Ronald E. Corkern, Jr., Corkern & Crews, L.L.C., Natchitoches, LA, for Defendants/Appellees, State Farm Mutual Auto Insurance Company, Derrick D. Smith.

      Craig Owen Marcotte, Hubley, Mar-cotte, Rhodes & Hussey, Shreveport, LA, for Defendant/Appellee, State Farm Mutual Auto Insurance Company(As UM Carrier).
    James Allen Cooper, Jr., The Law Office of Jack M. Bailey, Jr., Shreveport, LA, for Plaintiffs/Appellants, Roy E. Evans and Rosie Evans.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

L Rosie and Roy Evans appeal a trial court judgment granting an exception of prescription filed by State Farm Mutual Automobile Insurance Company (State Farm). They argue that the filing of Mr. Evans’ federal workers’ compensation claim interrupted prescription on their state tort claim for damages sustained when Mr. Evans was involved in an accident.

FACTS

On January 22, 2004, Mr. Evans was driving a United States Postal Service vehicle and delivering mail. In his petition, he claims that he was rear-ended by Derrick Smith, and this collision caused him injuries. Mr. Evans and his wife filed a petition for damages on April 8, 2005, against Mr. Smith and his insurer, State Farm. The Evanses also filed suit against State Farm in its capacity as their uninsured/underinsured motorist carrier.

State Farm, in its capacity as liability insurer of Mr. Smith, filed an exception of prescription alleging that the Evanses’ suit was prescribed because it was filed more than one year after the accident. The Evanses opposed the exception alleging that Mr. Evans had filed a federal workers’ compensation clam within one year of the accident. Mr. Evans also alleged that the claim was. still' pending, as he had appealed the decision.

After a hearing, the trial court ruled that the “claim in the Office of Workers’ Compensation Programs was not an action filed in a court of competent jurisdiction and venue, consequently, since State Farm was not served within the prescriptive period, prescription was not interrupted.” The Evanses appeal this decision.

| ¡.PRESCRIPTION

The Evanses argue that the filing of Mr. Evans’ federal workers’ compensation claim against the United States Postal Service did interrupt prescription against State Farm. They argue that the Federal Administrative Workers’ Compensation Court is a court of competent jurisdiction.

Louisiana Grad Code Article 3462 provides that prescription is interrupted when an action is commenced in a court of competent jurisdiction and venue. Further, La.Civ.Code art. 1799 provides that interruption of prescription against one solidary obligor interrupts prescription against all solidary obligors.

When the peremptory exception of prescription is filed, the burden of proof is generally on the party pleading prescription. If, however, on the face of the pleadings it appears that prescription has run, the burden shifts to the plaintiff to prove an interruption or suspension of the prescriptive period. Williams v. American Family Mut. Ins. Co., 520 So.2d 1082 (La.App. 3 Cir.1987). When the plaintiffs basis for claiming an interruption of prescription is solidary liability between two or more parties, the plaintiff bears the burden of proving that a solidary relationship exists. Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993).

In Williams v. Sewerage & Water Board, of New Orleans, 611 So.2d 1383 (La.1993), the supreme court held that the obligation of the employer and the tort liability of the third-party tort-feasor were solidary to the extent they shared coextensive liability to repair certain elements of the same damage. Thus, the court held that the suit for workers’ compensation benefits interrupted prescription as to the tort suit against the third-party tort-feasor. The supreme court also acknowledged its earlier opinion, Narcise v. Illinois Central Gulf Railroad Co., 427 So.2d 1192 (La.1983), which held that there can be solidary liability between a third-party tort-feasors and an employer sued under the Federal Employers’ Liability Act.

We acknowledge that at the time Williams was decided state workers’ compensation claims were filed with the district court as opposed to the Office of Workers’ Compensation, where claims are now filed. In Lucero v. Burney Gear Co., 33,585 (La.App. 2 Cir. 6/21/00), 764 So.2d 181, the second circuit held that this distinction made no difference and found that a claim filed with the Office of Workers’ Compensation interrupted prescription against a third-party tort-feasor. The first circuit also held that the filing of a claim with the Office of Workers’ Compensation had the same effect on prescription as the filing of a lawsuit. Scott v. Sears, Roebuck and Co., 99-571 (La.App. 1 Cir. 12/22/00), 778 So.2d 50.

Louisiana Code of Civil Procedure Article 5251(4) provides that a court of competent jurisdiction “means a court which has jurisdiction over the subject matter of, and is the proper venue for, the action or proceeding.” Applying this definition the second circuit held that a suit filed in federal court interrupted prescription on a state tort action. Martin v. Franklin State Bank & Trust Co., 595 So.2d 371 (La.App. 2 Cir.), writs denied, 596 So.2d 213, 597 So.2d 1036 (La.1992).

In Maquar v. Transit Management of Southeast Louisiana, Inc., 593 So.2d 365 (La.1992), the Louisiana Supreme Court held that the Office of Workers’ Compensation was not a court, either competent or incompetent, because it did not have binding adjudicatory powers at the time the claim was filed, in 1989. The court held that a claim filed with the Office of Workers’ Compensation did not interrupt prescription on a delictual action for retaliatory discharge penalties. The supreme court then recognized this court’s decision in Totty v. Dravo Corp., 413 So.2d 684 (La.App. 3 Cir.1982), in which we likened the Illinois Industrial Commission to a court for the purposes of interruption of prescription. The supreme court observed | ¿that the Illinois Industrial Commission had adjudicatory powers much like the Office of Workers’ Compensation after the 1988 amendments and the 1990 constitutional amendment.

Pursuant to 5 U.S.C.A. § 8145, the Secretary of Labor has the authority to administer and decide all issues arising under the federal workers’ compensation laws. See Bruni v. The United States, 964 F.2d 76 (1 Cir.1992). Therefore, the United States Department of Labor, Office of Workers’ Compensation had adjudicatory authority over Mr. Evans’ federal workers’ compensation claim.

The Evanses’ petition alleges that Mr. Evans filed a claim for federal workers’ compensation benefits within one year of the January 22, 2004 accident. The petition further states that an appeal from the decision of his federal workers’ compensation case was perfected on March 17, 2005, and is still pending. At the hearing on the exception of prescription, the Evanses introduced a copy of the federal claim form filed by Mr. Evans, indicating a filing date of January 22, 2004. A decision, denying his claim was received on March 24, 2004. Mr. Evans requested reconsideration on March 23, 2005. He did not receive a decision vacating the earlier decision until August 19, 2005, several months after he and his wife filed the state tort claim. Therefore, his claim was still pending when the tort suit was filed.

For the above reasons, we find that Mr. Evans’ filing of his federal workers’ compensation claim within a year of his accident interrupted prescription as to the filing of the state tort claim against Mr. Smith and his insurer, State Farm. The trial court erred in granting State Farm’s exception of prescription. Therefore, we reverse the judgment rendered in favor of State Farm as the liability insurer of Derrick Smith and remand the case for further proceedings. Costs of this appeal area assessed to State Farm.

[.REVERSED AND REMANDED.