text:
    In re Medical Review Donald PERTUIT—Gloria Pertuit Individually and on Behalf of Donald Pertuit, Donna Siren, Donald Pertuit, John Pertuit, Daniel Pertuit v. TENANT LOUISIANA HEALTH SYSTEMS d/b/a Lindy Boggs Medical Center and Dr. J. Philip Boudreaux. In re Medical Review Panel Proceedings for the Claim of Gloria Pertuit, Individually and on Behalf of Donald Pertuit (D), Donna Siren, John Pertuit, and Daniel Pertuit v. Tenet Louisiana Health Systems d/b/a Lindy Boggs Medical Center and Dr. J. Philip Boudreaux. Gloria Pertuit Individually and on Behalf Of Donald Pertuit, Donna Siren, Donald Pertuit, John Pertuit, Daniel Pertuit v. Tenant Mid-City Medical, LLC d/b/a Lindy Boggs Medical Center, State of Louisiana, Through the Louisiana State University Health Science Center and Dr. John Philip Boudreaux.
    Nos. 2010-CA-0654, 2010-CA-0655, 2010-CA-0656.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 22, 2010.

      Stephen P. Bruno, Christopher M. Hatcher, Bruno & Bruno, LLP, New Orleans, LA, for Plaintiffs/Appellants, Gloria Pertuit, et al.
    James D. Caldwell, Attorney General, Kelli M. Khalaf, Special Asst. A.G., J. Marc Vezina, Special Asst. A.G., Vezina and Gattuso, L.L.C., Gretna, LA, for Defendants/Appellees, State of Louisiana, Louisiana State University Health Services Center and J. Philip Boudreaux, M.D.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   MAX N. TOBIAS, JR., Judge.

| ,The plaintiffs appeal the granting of a motion for summary judgment in favor of the defendants, the State of • Louisiana, Louisiana State University Health Sciences Center (collectively “LSU Health Sciences”) and J. Philip Boudreaux, M.D. (“Dr. Boudreaux”), dismissing their medical malpractice claim with prejudice. After reviewing the case de novo, we affirm the trial court’s judgment.

In April 2005, the plaintiffs, Gloria Per-tuit, individually, and on behalf of her four children, Donald Pertuit, Donna Siren, John Pertuit, and Daniel Pertuit (collectively, “the Pertuits”) filed two separate medical malpractice complaints with the Patient’s Compensation Fund as a result of the death of Donald Pertuit. The first was against Tenant Mid-City Medical, LLC d/b/a Lindy Boggs Medical Center (“Tenet”), and the second was against Dr. Boudreaux. A medical review panel convened on 17 January 2007, and rendered an opinion against Tenet and unanimously in favor of Dr. Boudreaux and his employer, LSU Health Sciences, opining that the medical treatment by LSU Health Sciences and Dr. Boudreaux met all aspects of the standard of care. The medical review panel further opined that the informed consent was appropriate for the procedure, and that the discussion with the decedent and his family was well documented in the record.

Un March 2006, the Pertuits filed a medical malpractice action in district court against Tenet, Dr. Boudreaux, and LSU Health Sciences. After reaching a compromise of their claim against Tenet in October 2009, the Pertuits dismissed Tenet. Thereafter, Dr. Boudreaux and LSU Health Sciences moved for summary judgment, or alternatively, partial summary judgment, and their motion was heard on 11 December 2009. On 22 January 2010, the trial court, having determined that the consent form was clear, and in light of the plaintiffs’ expert having opined that Dr. Boudreaux did not breach the standard of care in performing the disclosed surgery, ruled in favor of the defendants dismissing the Pertuits’ malpractice action against them, with prejudice. It is from this adverse judgment that the Pertuits timely filed the instant appeal.

The decedent, Donald Pertuit (hereinafter, “Pertuit”), a 68-year old insulin-dependent diabetic, suffered from end-stage renal disease, hypertension, vascular disease and emphysema, among other ailments. In May 2004, Pertuit presented to Jill Lindberg, M.D., a nephrologist, complaining of chest pain and left flank pain. Dr. Lindberg referred Pertuit to the defendant, Dr. Boudreaux, a general surgeon, after an ultrasound revealed a mass in the left kidney, which was suspicious for renal cell carcinoma. A CT scan performed on 13 May 2004, revealed a 5 x 5 centimeter tumor in the upper aspect of Pertuit’s left native kidney, in addition to a suspicious mass near the falciform ligament of his liver.

|aDr. Boudreaux met with the decedent, his wife, and daughter; he recommended a bilateral native nephrectomy to remove all visible tumor, as well as exploration of the liver during surgery. The benefits and risks of the proposed surgery were discussed and, according to Dr. Boudreaux, the only reasonable alternative to the recommended radical nephrectomy and exploration of the liver was to not have the surgery and risk the persistent growth of the documented tumors. Dr. Boudreaux did not discuss with the Pertuits the option of performing a kidney biopsy as possibly a reasonable alternative to the recommended nephrectomy.

The decedent underwent a left radical nephrectomy and liver biopsy performed by Dr. Boudreaux on 25 May 2004. Pathology reports confirmed a diagnosis consistent with lymphoma in both the kidney and liver. The procedure was performed without incident or complication, and Per-tuit’s transplanted kidney remained functional.

Two days post-surgery, the decedent experienced excessive bleeding from the Cor-dis introducer (an access intravenous system) necessitating infusion of intravenous fluids and blood products, and intubation to prevent aspiration. Due to his immuno-suppressed condition, the decedent acquired MRSA pneumonia and a staph epidermis central line infection for which he was treated during his initial hospital stay. He was discharged on 1 June 2004.

|4Because of discoloration in his wound drainage, the decedent returned to the hospital for wound exploration on 4 June 2004. He received treatment for his staff infection and remained hospitalized in ICU until 12 June 2004.

Due to complaints of severe pain in his right lower extremity and discoloration of his foot and toes, the decedent was readmitted to the hospital. An angiogram was performed, revealing a clot in the bypass graft of his lower extremity. A thrombo-lysis was successfully performed and a patent graft was confirmed. The decedent was subsequently discharged on 30 June 2004.

On 7 July 2004, the decedent fell at his home suffering a minor nose injury, but did not seek emergency medical treatment. Four days later, he began complaining of a headache. The decedent died the following day, 12 July 2004, as a result of complications associated with an unrelated cardiac condition.

We review a district court’s grant of summary judgment de novo, applying the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137; Gibson v. Roberts, 97-0454, p. 2 (La.App. 4 Cir. 10/15/97), 701 So.2d 501, 503.

The only issue before this court is whether the trial court erred in granting the Pertuits’ motion for summary judgment on their claim that Dr. Boudreaux failed to obtain the decedent’s informed consent prior to proceeding with the exploratory surgery. The plaintiffs maintain that Dr. Boudreaux’s failure to offer a percutaneous biopsy as a reasonable alternative to exploratory surgery establishes a I ¡^genuine issue of material fact as to whether the consent given by the decedent prior to the procedure was informed.

Under the Louisiana informed consent doctrine, a physician is required to provide his patient with sufficient information to permit the patient to make an informed and intelligent decision on whether to submit to the proposed course of treatment. This information should include, if possible, the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the prospects of success, the risks of failing to undergo any treatment or procedure at all, and the risks of any alternate methods of treatment. A physician must also inform the patient of any alternatives that exist to a surgical procedure. La. R.S. 40:1299.40; Hondroulis v. Schuhmacher, 553 So.2d 398, 411 (La.1988); Morris v. Ferriss, 95-1790, p. 22 (La.App. 4 Cir. 2/15/96), 669 So.2d 1316, 1327.

Dr. Boudreaux does not dispute that a percutaneous biopsy was not offered as an alternative to exploratory surgery when he was advising the decedent about the recommended medical procedures to address the CT scan findings showing suspicious cancerous masses in both the decedent’s kidney and liver. Put simply, Dr. Bou-dreaux testified that he did not — and would not — offer a percutaneous biopsy as an alternative to the proposed surgery because, in his medical opinion, it was not a “reasonable alternative” for treating the decedent. In his medical opinion, the only feasible options for the decedent given his immunosuppressed condition were to perform the radical nephrectomy of the native kidney (which was nonfunctioning) and to explore the area of the liver and remove as much of the mass located there as possible, or do nothing and risk continued growth of the identified tumors. A review of the consent to medical treatment form contained in the record, which was signed by the decedent, clearly indicates that Dr. Boudreaux’s recommendations and the potential risks concomitant to the procedures were thoroughly discussed with the decedent prior to surgery.

In order to prove that a percutaneous biopsy was a reasonable alternative to the decedent’s surgery, the plaintiffs bear the burden of establishing that this alternative was an accepted medical treatment for the decedent’s condition. Morris, 95-1790, p. 23, 669 So.2d at 1327. This included consideration that the decedent was an immunosuppressed transplant patient. A physician has no duty to 17disclose alternative treatments or procedures which are not accepted as feasible. Id.

The sole support for the plaintiffs’ argument that a percutaneous biopsy was a reasonable alternative to the radical ne-phrectomy performed in this case, was the deposition testimony of their medical expert, David Easter, M.D., who stated that he “would have preferred a percutaneous biopsy in this situation” as he thought it was the “better treatment, the better diagnostic move.” Dr. Easter explained that, with the report of the CT scan showing a differential diagnosis of lymphoma of the kidney versus renal cell carcinoma, which in his opinion was more likely lymphoma due to other involved lymph nodes and the other mass that was in the hilum and ligaments of the liver, a biopsy was indicated. It was his opinion that if the diagnosis of lymphoma had been confirmed via biopsy, a nephrectomy would not have been necessary as chemotherapy would have been the recommended course of treatment for this type of cancer. However, Dr. Easter also testified that he could not say that Dr. Boudreaux’s “skipping a percutaneous biopsy [fell below] the standard of care.”

In support of their argument that a percutaneous biopsy was not a reasonable alternative to the proposed exploratory surgery, the defendants offered the decision of the medical review panel that stated:

Specifically, the members of the medical review panel conclude as to Dr. Boudreaux the following:

| sl) The informed consent was appropriate for the procedure and the discussion with the patient and his family was well documented in the record.
2) The procedure as presented was indicated and well within the standard of care.

Additionally, the defendants offered the affidavits of Alan Levin, M.D., and Rene DeBoisblanc, M.D., who were members of the medical review panel rendering the decision; the defendants’ expert witness, Todd Jarrell, M.D., who concurred in the findings of the medical review panel; and, the deposition testimony of Dr. Boudreaux. All five physicians opined that the exploratory surgery for nephrectomy to remove any and all visible tumor and to explore the liver and remove any tumor encountered was indicated under the circumstances and within the standard of care.

Dr. Boudreaux testified that both the pre-operative and clinical diagnosis for the decedent, prior to pathologic information, was renal cell carcinoma with possible liver metastasis. He explained that renal cell lymphoma is a very rare disease and while it was a part of the differential diagnosis for the decedent as noted on the CT scan, it was not the primary diagnosis. He further testified that treatment for renal cell carcinoma or primary lymphoma of the kidney is the same — surgery to remove the kidney. In his opinion, it would violate cancer care principles to open a tumor in the kidney because the goal is to try and completely excise the tumor with all tissue planes intact to ensure good, clear margins. In short, “[w]hile the open biopsy is a lesser operation, it is not a good cancer | soperation on a kidney.” Dr. Boudreaux opined that it is not the standard of care to do open or excisional biopsies of kidney tumors, even if they turn out to be lymphoma, and that in the majority of instances, the open biopsy of the kidney would, in essence, be a nephrectomy. Additionally, Dr. Boudreaux testified that in the case of transplant patients, he does not perform a percutaneous biopsy because of the associated risks and, thus, this procedure was not even an option for the decedent, an immunosuppressed transplant patient. As it was not a viable, feasible, or reasonable option to the recommended exploratory surgery, Dr. Boudreaux did not discuss it with the decedent.

We find the plaintiffs have failed to prove that a percutaneous biopsy was a feasible or appropriate alternative to exploratory surgery for the decedent in this case. First, the evidence is undisputed that the decedent had a kidney tumor that was either lymphoma or renal cell carcinoma, and a mass on his liver. The overwhelming expert evidence in the record is that surgery is the indicated procedure for cancerous tumors of the kidney. Second, the plaintiffs’ expert, Dr. Easter, is the only physician of six who have rendered opinions in this case, that has opined that a percutaneous biopsy was a viable alternative to the nephrectomy. However, we do not find that Dr. Easter’s opinion creates a genuine issue of material fact sufficient to defeat summary judgment in this case because Dr. Easter conceded that he could not say “skipping the percutaneous biopsy” fell below the standard of care. Next, the decedent was an immunosuppressed transplant patient. Dr. Boudreaux does not use a percutaneous biopsy when treating transplant patients because of the associated risks and, therefore, would not have recommended the procedure to the decedent.

|inFor the foregoing reasons, we find no genuine issue of material facts exists and that the trial court properly determined that Dr. Boudreaux’s failure to offer the alternative procedure of a percutaneous biopsy does not negate the decedent’s informed consent for surgery in this case.

AFFIRMED.

      . As a result of his renal disease, Pertuit received dialysis until a cadaveric transplant was performed by the defendant, Dr. Bou-dreaux, in May 2002 at the LSU Transplant Center. Additionally, in 2003, due to ongoing peripheral vascular disease secondary to diabetes, Pertuit underwent a right femoral-po-pliteal bypass to relieve claudication, left lower extremity angioplasty, and ray amputation for infected toes of the left foot, as well as a partial amputation of the left foot.

      . According to the plaintiffs, the CT scan was reviewed by Richard Vanderbrook, M.D., whose impression was as follows: (1) a soft tissue mass at the level of the portal hilum, extending along the course of the falciform ligament with intraparenchymal component with the left hepatic lobe, suspicious for lym-phamatous involvement in this immunosup-pressed transplant patient; and (2) soft tissue mass extending from mid-pole of left kidney renal cell carcinoma versus lymphamatous involvement of left kidney in the differential. Dr. Vanderbrook’s findings are not contained in the record on appeal.

      . The Pertuits have not appealed the trial court’s dismissal of their claim that Dr. Bou-dreaux breached the standard of care in his treatment of the decedent. On appeal, the Pertuits allege only that the trial court erred in granting summary judgment as to their claim for lack of informed consent.

      . La. R.S. 40:1299.40 sets forth the requirements for informed consent. It provides, in pertinent part:

        A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

      C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (1) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

      . Dr. Easter conceded in his deposition that one of die primary areas of extension of renal cell carcinomas can be to the liver.

      . Dr. Easter’s deposition testimony was attached to the Plaintiffs’ Memorandum in Opposition to Summary Judgment submitted to the trial court and, thus, was "filed into the record’’ and can properly be considered on appeal. See Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, pp. 4-5 (La.2/20/04), 866 So.2d 228, 232; La. C.C.P. art. 966 B.

      .Dr. Boudreaux disagreed with Dr. Easter that chemotherapy would have been the proper treatment for a diagnosis of lymphoma, especially because the disease was found elsewhere in the body. In his opinion, chemotherapy would have merely been an adjunct to surgical removal of the kidney.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    HARRIS BUILDERS, L.L.C. & Lloyd Harris, Jr. v. Kerry Dion BROWN & Kerry D. Brown, L.L.C.
    No. 10-CA-207.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2010.

      Lloyd N. Shields, Jeffrey K Prattini, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellees.
    Kevin P. Klibert, Attorney at Law, Reserve, LA, for Defendants/Appellants.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12This appeal arises from the grant of a Motion for Summary Judgment in favor of Plaintiffs/Appellees, Harris Builders, L.L.C. and Lloyd Harris, Jr. (hereinafter referred to as “Plaintiffs”), against Defendants/Appellants, Kerry Dion Brown and Kerry D. Brown, L.L.C., from the 40th Judicial District Court, Division “C.” For the following reasons, the appeal is dismissed without prejudice, and the matter is remanded to the trial court for further proceedings.

According to the pleadings and record, this matter concerns the alleged breach of an oral construction contract. Defendants, the owners of real property, entered into a contract with Plaintiffs for the construction of a commercial office building. Plaintiffs allege that the parties came to an oral agreement that they would fund the construction of the office building at cost, or $278,000.00, at 5% annual interest, payable in monthly installments with a final payment due at the completion of the building. Defendant Kerry Dion Brown was legal counsel for Plaintiffs at the time the agreement was made, and Plaintiffs argue that Brown represented that the agreement would be reduced to writing, and the written | ¡¡contract would be filed in the Office of the Recorder of Mortgages for the Parish of St. John the Baptist.

Plaintiffs began construction on the office building on or about February 1, 2007. Defendant Brown allegedly assured Plaintiffs that he would reduce the contract to writing and make payments on the contract, while the office building was being constructed. In August 2007, Plaintiffs ceased construction of the building because of non-payment. Plaintiffs allege that Defendants began to use the office building and began leasing units in the building for rental income.

Plaintiffs filed a Petition for Damages on April 3, 2008, alleging that Defendants breached the oral construction contract. On April 25, 2008, Defendant Brown, representing himself and his limited liability company filed a Motion for Extension of Time to file an Answer to the Petition, which was granted by the trial court. On May 28, 2008, Defendant Brown filed his Answer. Plaintiffs filed Exceptions of Vagueness and Non-Conformance with LSA-C.C.P. arts. 891 and 892 to clarify whether the affirmative statements in the Answer were considered as a reconven-tional demand.

On September 22, 2008, Plaintiffs propounded discovery requests on Defendants, which included interrogatories, a request for production of documents, and requests for admission. Defendants filed a Motion for Extension of Time to respond to the discovery requests, which was granted by the trial court. Despite the extension of time and the discovery conference, Defendants did not respond to the discovery requests.

On January 20, 2009, Plaintiffs filed a Motion for Summary Judgment alleging they were entitled to judgment as a matter of law due to Defendants’ failure to respond to the Request for Admissions of Fact. The hearing for the motion was originally scheduled for February 26, 2009. On February 25, 2009, ^Defendants retained counsel and filed a Motion to Continue for continuance of the hearing. The trial court granted the motion; however, the trial court barred Defendants from orally arguing the motion. The hearing was reset for March 9, 2009. On March 9, 2009, Defendants filed their Opposition to the Motion for Summary Judgment. The trial court took the matter under advisement.

On June 25, 2009, the trial court granted Plaintiffs Motion for Summary Judgment with written reasons. The trial court reasoned that Defendants’ lack of response to the Request for Admissions resulted in the admission of the facts, pursuant to LSA-C.C.P. art. 1467. As a result, Defendants were liable to Plaintiffs, which meant there were no remaining issues of genuine fact. Defendant filed a Motion for New Trial, which was denied by the trial court. The instant appeal followed.

On appeal, Defendants present the following issues: 1) whether the Louisiana Uniform Rules of District Court 9.8 and 9.9 require that a non-movant receive adequate notice of hearing in advance of a hearing sufficient to afford that party the opportunity to file a timely memorandum in opposition; 2) whether the trial court erred in granting the Motion for Summary Judgment when Plaintiffs failed to comply with Uniform Rule of District Court 9.10; and, 3) whether the trial court erred in concluding this case without ever ruling on Defendants’ affirmative defenses/reconven-tional demands, when those claims were never included in Plaintiffs’ Motion for Summary Judgment. '

Before we address the merits of the summary judgment in favor of Plaintiffs, we must address the appealability of the judgment itself. The judgment itself simply stated that the summary judgment had been granted in favor of Plaintiffs. However, the judgment makes no mention of a disposition for a reconventional demand.

|SA final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814. LSA-C.C.P. art. 2083. An interlocutory judgment is appealable only when expressly provided by law. Id.

LSA-C.C.P. art. 1915 provides, in pertinent part,

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of few than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

At this point in the matter, it is unclear to this Court whether Defendants’ Answer was also considered as a reconventional demand. All parties acknowledge that Exceptions of Vagueness and Non-Conformance with LSA-C.C.P. arts. 891 and 892 were filed by Plaintiffs in the trial court. The hearing for the exceptions was set for December 8, 2008. However, there is no indication in the record that the trial court ever ruled upon the exceptions. Additionally, all parties agree in their briefs that the trial court did not make a judgment regarding the exceptions. Plaintiffs assert that the exceptions are now moot. However, the determination of the trial court as to whether the Answer is also a reconven-tional demand is crucial in determining whether this Court has the jurisdiction to consider the instant appeal.

| r,Because the trial court did not make a clear ruling regarding Defendants’ possible reconventional demand, it is unknown whether the summary judgment is a final appealable judgment addressing all issues presented to the trial court or an interlocutory judgment rendering a partial final judgment. Consequently, this Court cannot proceed to address the merits of the instant appeal without having conclusive knowledge of the nature of the trial court’s judgment.

DECREE

Accordingly, the appeal is dismissed without prejudice, and the matter is remanded to the trial court for determination of Plaintiffs’ Exceptions of Vagueness and Non-Conformance with LSA-C.C.P. arts. 891 and 892. Each party is to bear his/its own costs for this appeal.

APPEAL DISMISSED; REMANDED TO TRIAL COURT FOR FURTHER PROCEEDINGS.


author: MAX N. TOBIAS, JR., Judge. BONIN, J.,

text:
    Patrick RUSSO, Janice Russo, Individually and on Behalf of Their Minor Child Patrick R. Russo and Ashley Russo and Russell Russo v. Dr. Steven KRAUS In re Medical Review Panel Claim of Janice Russo.
    Nos. 2010-CA-0178, 2010-CA-0179.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.

      Stephen P. Bruno, Christopher M. Hatcher, Bruno & Bruno, LLP, R. Ray Orrill, Jr., Orrill Cordell & Beary, L.L.C., New Orleans, LA, for Patrick Russo, et al.
    James D. “Buddy” Caldwell, Attorney General, J. Elliott Baker, Special Assistant Attorney General, Covington, LA, for Dr. Steven Kraus and the State of Louisiana.
    Paul M. Batiza, Batiza Godofsky & Schroeder, Metairie, LA, for Dr. Steven Kraus.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiffs/appellants, Patrick and Janice Russo, individually and on behalf of their minor children, appeal from a summary judgment in favor of the defendants/appellees, the State of Louisiana and Steven Kraus, M.D. The trial court found that the three-year prescriptive period established by La. R.S. 9:5628 for medical malpractice actions was constitutional, thereby dismissing the plaintiffs/appellants claims with prejudice.

In August 1998, Janice Russo, who was being treated by John Megison, M.D., underwent a routine PAP smear which revealed a low grade squamous cell intraep-ithelial lesion and mild dysplasia without malignancy. A uterine cervix |2biopsy was performed that revealed moderate-severe dysplasia without malignancy. Dr. Megison recommended a hysterectomy, which was performed. The tissue removed during the surgery was sent to the pathology lab at Lakeside Hospital in Me-tairie, Louisiana, on 9 October 1998 for analysis. The defendant/appellee’s (Dr. Kraus) analysis of the tissue resulted in the following findings:

The cervix contains extensive areas of severe dysplasia/carcinoma in situ with involvement in endocervical glands. In areas, there is a pronounced inflammatory response surrounding some of the areas of glandular extension of carcinoma in situ and focal areas of superficial microinvasion from these sites cannot be ruled out. No definitive evidence of invasive carcinoma is identified, however. [Emphasis supplied]

In 2005, Mrs. Russo noticed a lump in her neck about the size of a pea. She had a biopsy which revealed a malignancy. Mrs. Russo was initially diagnosed at M.D. Anderson Hospital in Houston, Texas, with an unknown primary malignancy. On 5 January 2006, Renato Lenzi, M.D., opined that “given the tumor histology and lymph node distribution with dominant disease in the pelvis and the fact that there is a prior hysterectomy showing massive amounts of in situ, carcinoma in the cervix ... the most likely diagnosis is that of metastic squamous cervical cancer.”

In January 2006, Ralph Freedman, M.D., a gynecologist at M.D. Anderson Hospital, requested that Lakeside Hospital send the original slides from the Ighysterectomy. He was told that the slides were missing and that new tissue would have to be cut from the original tissue samples. On 30 January 2006, Dr. Kraus reported the finding of “invasive poorly differentiated squamous carcinoma of the uterine cervix ... squamous carcinoma in situ with endocervical gland involvement.” Mrs. Russo was advised by her doctors of the findings; she later died from the disease. She is survived by her husband and three children.

Mrs. Russo received her first indication of a problem in 2005 when she felt a lump in her neck approximately seven and one-half years from the time Dr. Kraus analyzed the tissue from her hysterectomy. La. R.S. 9:5628 as written would require Mrs. Russo to file her medical malpractice claim four and one-half years before her discovery that malpractice may have occurred.

In May 2006, the plaintiffs/appellants filed a petition for declaratory judgment against Dr. Kraus, seeking a declaration that La. R.S. 9:5628 is unconstitutional for violating La. Const. Article I, § 3 (equal protection) and La. Const. Article I, § 22 (access to the courts). The plaintiffs/appellants also filed a petition for a medical review panel with the Louisiana Patient’s Compensation Fund.

On 26 July 2006, the State of Louisiana filed a petition of intervention. Thereafter, the plaintiffs/appellants filed a supplemental and amended petition in which they averred that their claim had prescribed on its face under La. R.S. 9:5628, but again asserted that the statute was unconstitutional.

|4A Sibley hearing was set for 16 January 2009 to determine the constitutionality of La. R.S. 9:5628. The hearing was continued until 13 April 2009, and later continued without date. Meanwhile, the defendants filed a peremptory exception of prescription and two motions for summary judgment: the first asserted that La. R.S. 9:5628 did not discriminate on the basis of physical condition and the second asserted that the statute was constitutional. The plaintiffs/appellants opposed both motions. The trial court decided to hear the motions first and later hold the Sibley hearing, if necessary. On 18 September 2008, the trial court granted the motions for summary judgment; the exception of prescription was never argued.

On 23 September 2009, the parties entered into a stipulation that, in light of the summary judgments, the plaintiffs/appellants’ claim had prescribed under La. R.S. 9:5628, but reserved their rights to appeal the summary judgments and the exception of prescription that was later granted by the trial court. The two cases were consolidated and this timely appeal followed.

The plaintiffs/appellants have assigned four errors for review. First, they claim that the trial court committed reversible error by failing to hold a Sibley hearing before dismissing the case. Next, they argue that the trial court erred by granting the motions for summary judgment. The plaintiffs/appellants also contend that the trial court erred by granting the exception of prescription and, finally, that the trial court erred by finding La. R.S. 9:5628 constitutional.

Normally, “[w]hen prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings | sof fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.” London Towne Condominiums Homeowner’s Ass’n v. London Towne Co., 2006-401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231. However, in the instant case, the exception of prescription was granted by the trial court based on the parties’ stipulation. Since summary judgments are reviewed de novo, we apply that standard of review.

The plaintiffs/appellants first contend that the trial court committed reversible error by failing to hold a Sibley hearing before granting the motions for summary judgment.

In Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985), the Supreme Court considered the constitutionality of La. R.S. 40:1299.39, which provides a malpractice judgment limitation of $500,000 for state medical services. The plaintiffs argued, inter alia, that the statute was invalid because it conflicted with the constitutional guarantee of equal protection and the constitutional prohibition against state immunity from suit and liability for personal injury.

The Court stated that when a law classifying individuals on the basis of physical condition is attacked, the proponent of the legislation must show that the law does not arbitrarily, capriciously, or unreasonably discriminate against the disadvantaged class by demonstrating that the legislative classification substantially furthers a legitimate state objective. Because the statutory provision 1 (¡prohibiting a malpractice judgment in favor of a severely injured and disabled person in excess of $500,000 classified individuals based on their physical condition, the Court remanded the case to afford the parties an opportunity to introduce evidence on the issue. Id. at 1104-05. In subsequent cases, this process has been referred to as a “Sibley hearing.”

We agree with the plaintiffs/appellants that a Sibley hearing is the preferred method to test the constitutionality of this statute. We also agree that the failure to hold the hearing is reversible error in this case.

The starting point of our analysis is the governing statute, La. R.S. 9:5628, which provides in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. [Emphasis supplied.]

In In re Medical Review Panel Claim of Moses, 00-2643, pp. 7-10 (La.5/25/01), 788 So.2d 1173, 1178-80, the Supreme Court described La. R.S. 9:5628 as a “tripartite prescription provision:”

First, a one-year prescription period '(which parallels the general tort period) is the general rule, which applies to all types of medical malpractice actions. Under this general rule, such actions prescribe one year from the date of the alleged act, omission or neglect. This rule applies when the damages are immediately apparent.
Second, in cases involving damages that are not immediately apparent, a discovery exception to the general rule is codified. The discovery exception embodied in Section 5628 is a codification of the fourth category of contra non valen-tem for cases in which the cause of action is not immediately knowable. Under this discovery rule, such actions prescribe one year from the date of discovery of the alleged act, omission or neglect.
Third, an overall limitation is placed on cases otherwise falling within the discovery rule. That overall limitation ... provides that “in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.” La. Rev.Stat. 9:5628 (emphasis supplied). Translated, this means that “the contra non valentem type of exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the alleged injury causing act, omission or neglect.” Boutte v. Jefferson Parish Hospital Service District No. 1, 99-2402 at p. 5 (La.4/11/00), 759 So.2d 45, 49.

The plaintiffs/appellants argue that La. R.S. 9:5628 violates the equal protection guarantees of La. Const. Art. I, § 3 because (1) it discriminates against those who sustain injury at the time of the alleged negligent act or omission but whose injury is not reasonably discoverable or cognizable until after the lapse of the three-year prescriptive period, unlike the injuries of most malpractice claimants; (2) it classifies personal injury victims of medical malpractice whose injuries do not manifest themselves within the three-year prescriptive period ^differently than all other personal injury tort victims; and (3) it discriminates on the basis of severity of injury. Thus, they contend that for one or more of these reasons, the statute discriminates on the basis of physical condition.

Article I, Section 3 of the Louisiana Constitution provides that a person shall not be denied the equal protection of the laws and that no law shall arbitrarily or unreasonably discriminate against a person because of physical condition. When a statute classifies persons on the basis of physical condition, the burden is on the state or other advocate of the law to prove that the classification has a reasonable basis. However, a law which classifies individuals on a basis outside the scope of La. Const, art. I, § 3 will be upheld, unless a member of the disadvantaged class shows that the statute does not suitably further any appropriate state interest. Crier v. Whitecloud, 496 So.2d 305 (La.1986); Sibley, supra.

In Sibley, 477 So.2d 1094, the Court addressed what is required to declare a statute unconstitutional pursuant to La. Const. Art. I, § 3:

We determined that Article I, Section 3 of the 1974 Louisiana Constitution necessitates that: (1) A statute shall be repudiated completely if it classifies individuals by race or religious belief; (2) A statute’s enforcement shall be refused absent a showing that the classification has a reasonable basis when the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations; and (3) A statute shall be rejected when the law classifies on any other basis, and a member of the disadvantaged class shows that it does not suitably further any appropriate state interest.

Sibley, 477 So.2d at 1104.

In Crier, a physician implanted a metal rod in Ms. Crier’s back in 1978 to correct scoliosis. In March 1982, she began to experience severe back pain and |9learned that the rod in her back had broken. Ms. Crier filed suit within one year of this discovery, but more than three years after the date of her back surgery.

Whether a claimant’s delay in filing suit was due to a latent disease or because the consequences of a prior act could not be detected for an extended time period, Ms. Crier, like Mrs. Russo here, could not have known of her injury before the expiration of the statutory limitation period. Nevertheless, the Supreme Court held that Ms. Crier’s equal protection rights were not violated because La. R.S. 9:5628 equally affects all persons who undergo medical treatment. The Court stated that La. R.S. 9:5628 provides notice that malpractice claims will be barred if not filed within three years from the act, omission, or neglect. The Court further stated that the statute is a legislative determination, that three years is a reasonable period of time in which to assert a medical malpractice claim, and does not create a classification which discriminates against one class of individuals because of their physical condition. Crier, 496 So.2d at 310.

The next question in an equal protection argument analysis is whether the statute in question furthers a legitimate state interest. In Branch v. Willis-Knighton Medical Center, 92-3086, pp. 9-10 (La.4/28/94), 636 So.2d 211, 215, overruled on other grounds, David v. Our Lady of the Lake Hospital, 02-2675 (La.07/02/03), 849 So.2d 38, the Court addressed this issue:

The purpose of the statute is to check the increase in medical malpractice insurance premiums by restricting the volume and retrospective nature of medical malpractice litigation. There is no evidence that the legislature intended by R.S. 9:5628 to curb any type of litigation other than traditional medical malpractice actions.
During the 1970’s [sic] he rising costs of medical malpractice insurance and the decreasing availability of such coverage gave rise to the perception of a “medical | inmalpractice crisis” in certain states. Note, Constitutional Law — Louisiana Medical Malpractice Review Panel Upheld Under Equal Protection Scrutiny, 53 Tul.L.Rev. 640, 641 (1979). In 1975, the legislatures of many states, prompted by the lobby of the American Medical Association and the malpractice insurance companies (AMA lobby), enacted significant changes in substantive and procedural laws governing the adjudication of medical malpractice claims. Id., and sources cited therein. Legislation was adopted to limit the amount of awards, constrain attorneys’ contingent fees, shorten and tighten statutes of limitations, redefine medical standards of care, and require pretrial screening or arbitration of claims. Id.
In Louisiana, in response to or in anticipation of a malpractice insurance crisis, the legislature in its 1975 regular session, adopted a series of laws limiting the rights of medical malpractice claimants. Besides the special statute of limitations for medical malpractice claims, R.S. 9:5628, the legislation successfully promoted by the AMA lobby included the Uniform Consent Law, R.S. 40:1299.40; the Medical Malpractice Act, R.S. 40:1299.41 et seq; and the law strengthening the powers of the State Board of Medical Examiners, R.S. 37:1261 et seq. See Note, supra, 53 Tul.L.Rev. at 642 n. 10.

After reviewing the appellate record, however, we find that the plaintiffs/appellants present a compelling argument that La. R.S. 9:5628 fails to further an appropriate state interest as applied to Mrs. Russo and others- similarly situated. In Whitnell v. Silverman, 93-2468, p. 6 (La.App. 4 Cir. 11/4/94), 646 So.2d 989, 994, reversed on other grounds, 95-0112 (La.12/6/95), 686 So.2d 23, the trial court held a three-day hearing that presented extensive evidence on the issue of whether a medical malpractice insurance crisis existed when La. R.S. 9:5628 was originally enacted (or later when the act was substantively amended). In its reasons for judgment, the trial court stated:

The evidence establishes that the Legislature enacted Act 808 of 1975 without the benefit of actuarial evidence specifically applicable to Louisiana’s situation in 1975. |n Moreover, analyzing Mr. Lowe’s, Mr. Wood’s and Mr. Hurley’s testimony, the Court finds that it is more probable than not that although the quantity of medical negligence cases being filed, the amounts being paid out by insurers, etc., were increasing, such was a normal actuarial aberration in figures that did not at that time (1975) warrant substantive action by the Legislature.

1As recognized by our brethren of the Second Circuit Court of Appeal, Louisiana appellate courts presented with attacks on the constitutionality of La. R.S. 9:5628, as applied to diseases with latency periods in excess of three years, have upheld the statute on equal protection grounds. Walker v. Bossier Medical Center, 38,148, pp. 4-5 (La.App. 2 Cir. 5/12/04), 873 So.2d 841, 844 (hereinafter “Walker I ”), decided by a vote of 3-2, held that the statute was an unconstitutional deprivation of due process as applied to Mrs. Walker, who had contracted Hepatitis C during a 1981 blood transfusion. The court also stated:

To find La. R.S. 9:5628 constitutional as applied to plaintiffs who suffer from diseases with latency periods which prohibit their manifestation and discovery until well after the three-year, event-oriented period provided by Section 5628 would be to prevent a small number of the least blameworthy, yet most seriously injured claimants from having their day in court. To do so would divest such plaintiffs of their fundamental right to due process through the legal system while allowing defendant health care providers to avoid accountability and litigation.

Id. at pp. 6-7, 873 So.2d at 845. [Emphasis in original.] However, the court limited its conclusion to hold that La. R.S. 9:5628 was unconstitutional only as applied to these claimants. In declining to apply R.S. 9:5628 to bar the plaintiffs’ cause of action in Walker I, the court found that:

I isiWJhile the Medical Malpractice Act, including its peremptive period, is rationally related to a legitimate government interest, reasonable medical costs, and readily available health care, the statute’s rote application in the case sub judice does not further such interests and ignores the rights of innocent medical malpractice claimants. To require a plaintiff to assert a claim before the alleged malpractice and resulting injury are discoverable imposes an impossible condition on her access to the courts and the pursuit of her tort remedy.

Id. at p. 7, 873 So.2d at 845.

The hospital sought review by the Supreme Court. Finding that Walker I appeared to conflict with Williams v. Jackson Parish Hospital, 33,847 (La.App. 2 Cir. 10/20/00), 768 So.2d 866, rev’d on other grounds, 00-3170 (La.10/16/01), 798 So.2d 921, the Supreme Court vacated the judgment and remanded the case for an en banc hearing. Walker v. Bossier Medical Center, 04-1797 (La.2/25/05), 894 So.2d 1096.

On remand, the court en banc found the statute constitutional. See Walker v. Bossier Medical Center, 38,148 (La.App. 2 Cir. 5/11/05), 902 So.2d 1228. The court stated that to successfully challenge the validity of Section 5628 on equal 114protection grounds, the plaintiffs bore the burden of proving that the statute did not further an appropriate state interest. However, the court found that the plaintiffs failed to satisfy their burden in light of prior Supreme Court findings that the three-year limitation period was intended by the legislature to alleviate increased insurance costs attributed to the extended period available for filing medical malpractice claims and that the statute was rationally related to the state’s interest in attempting to provide the public with accessible health care at reasonable costs. Id. at p. 7, 902 So.2d at 1234-35.

In Whitnell v. Silverman, 95-0112 (La.12/6/95), 686 So.2d 23, the Supreme Court reversed this court’s finding that La. R.S. 9:5628 violated La. Const. Art. I, § 3, in that it unreasonably discriminated against Mrs. Whitnell on the basis of physical condition, thereby creating a classification prohibited by the Louisiana Constitution. To support our position, we noted the testimony of Stuart Hoffman, M.D., who provided an illustrative list of 19 diseases with latency periods in excess of three years. The list of the 19 diseases with latency periods in excess of three years consisted of the following:

1. Carcinoma of the cervix-in situ-pap smear
2. Mammographie evidence of breast eareinoma-non-palpable
3. Familial hypolipidemia
4. Asymptomatic coronary atherosclerosis
5. Early stage multiple myeloma
6. Von Willbrand’s disease
7. Leukoplakia
8. Colon polyps
9. Malignant melanoma behind ear
10. Aneurysm — thoracic aorta — cerebral artery
11. Early stage ovarian carcinoma
12. Chronic active hepatitis
13. First degree heart block
|1fil4. Second degree heart block
15. Petit mal seizures
16. Congenital absence of the spleen
17. Pernicious anemia
18. Gout
19. Blood Transfusion Acquired AIDS

The Court found Section 5628 constitutional as applied to Mrs. Whitnell as her medical condition was discoverable within the three-year period. Additionally, because her medical condition was not included among the nineteen diseases listed above, the Court held that the lower courts erred in finding the statute unconstitutional as applied to individuals with diseases which have latency periods in excess of three years. Because she was not in the class of persons with latent diseases, the plaintiff had no standing to assert constitutional attacks for third parties who were not before the Court. However, the Court stated:

This ruling by the Court does not address the constitutionality of La. R.S. 9:5628 as it applies to individuals with diseases that have latency periods in excess of three years. The court has basically declined to decide on this issue because it is not presently before it.

Id. at p. 9 n. 13, 686 So.2d at 29 n. 13.

In his dissent in Whitnell, Justice Lem-mon noted:

A case with a lengthy latency period might call for our reexamination of the Crier decision on the constitutionality of Section 5628. Section 5628 distinguishes not only between victims of medical malpractice and victims of other torts, but also between medical malpractice victims with injuries that manifest themselves within three years and victims with injuries that remain latent beyond three years. While such classifications are usually analyzed for equal protection purposes under a rational basis standard (the asserted rational basis being the perceived medical malpractice insurance crisis in the 1970s), there are also due process implications to the analysis.
There have been suggestions that only a small percentage of medical malpractice claimants are affected hr,by a three [sic] year statute of repose. The converse, however, is equally true — only a small percentage of claims against health care providers are eliminated by such a statute. Depriving a few perhaps horribly injured innocent victims of their claims in order to relieve a few health care providers of late filing problems such as lost evidence, faded memories and unavailable witnesses appears to be fundamentally unfair, which is the hallmark of a due process violation. The medical malpractice victim, who has the ultimate burden of proof at trial, labors under the same difficulties caused by the late manifestation of an injury, which is not attributable to the victim.

Id. at p. 3 n. 5, 686 So.2d at 33 n. 5. [Citation omitted.]

In David v. Our Lady of the Lake Hospital, 02-2675, p. 18 (La. 07/02/03), 849 So.2d 38, 51-52, the Court again left open the issue of the constitutionality of the statute as it applies to an action filed by a claimant with a disease whose latency period exceeds three years:

Nevertheless, equity suggests that since the jurisprudence addressing the applicability of LSA-R.S. 9:5628 to a cause of action such as David’s has been in a state of flux, remand is proper under the extraordinary circumstances encountered during this prolonged litigation. Further, this court has left open the issue of the constitutionality of LSA-R.S. 9:5628 as it applies to bar an action by a person suffering from a disease with a latency period in excess of three years. See Whitnell v. Silverman, 95-0112, p. 9 n. 13 (La.12/06/96), 686 So.2d 23, 29 n. 13. Pursuant to LSA-C.C.P. art. 2164, which permits appellate courts to remand cases when the interest of justice is served, we sustain OLOL’s exception of prescription, but remand this matter to the trial court to allow David an opportunity to file an amended petition urging the constitutional challenge. [Emphasis supplied; footnotes omitted.]

In the instant case, the parties agree that Mrs. Russo died from squamous carcinoma in- situ, a disease with a latency period exceeding three years. One can J^say that the record before us shows that her medical condition is substantially identical and/or similar to the first disease on the Whitnell list. In order to be more certain, on remand at the Sibley hearing, the parties should put forth evidence into the record to establish that squamous carcinoma in situ is one of the nineteen diseases in Whitnell and/or that it should be added to the list of nineteen. We note further that the Supreme Court has neither criticized nor repudiated that list. On two separate occasions, the Court has acknowledged that the issue presented herein is open.

Consequently, we presently decline to find that La. R.S. 9:5628 is unconstitutional as applied to Mrs. Russo and third parties with diseases with latency periods in excess of three years by violating La. Const. Art. I, § 3. The statute, although facially neutral, creates two classes of medical malpractice victims: (1) those whose injuries are discoverable within three years and (2) those whose injuries are not. As applied to the second class, the statute does not afford them the same protections as it does to the first class.

The plaintiffs/appellants also challenge the constitutionality of La. R.S. 9:5628 on the basis that its application deprives them of the constitutional right to access to the courts. Article I, Section 22 of the Louisiana Constitution of 1974 provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

11sAs the Supreme Court determined in Crier, supra, the constitutional guarantee of access to courts and a remedy for injuries does not warrant a remedy for every single injury. In that case, the Court examined the historical background of Article I, Section 22 of the Louisiana Constitution and concluded that in adopting this constitutional article, the Constitutional Convention did not intend to limit the legislature’s ability to restrict causes of action or to bar the Legislature from creating various areas of statutory immunity from suit. The Court further acknowledged that the establishment of statutes of limitations (prescriptive periods) is within the scope of legislative authority, and that enactment of same does not eliminate the remedy for a civil wrong. The Legislature essentially makes a legislative determination that after a certain period of time, no cause of action can arise. Moreover, “[wjhere access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machinery on any system or classification which is not arbitrary.” Crier, 496 So.2d at 310 (citing Bazley v. Tortorich, 397 So.2d 475 (La.1981)).

In the case at bar, one may reasonably assert that Mrs. Russo was part of a class disadvantaged by the enforcement of La. R.S. 9:5628, and further, that the statute is unconstitutional as applied to her under the facts of this case. The evidence so far appears to indicate that Mrs. Russo could not have discovered her cervical cancer within the three years afforded by the statute. Under these circumstances, one may reasonably assert that- Mrs. Russo was afforded less consideration or protection than other tort or medical malpractice victims subject to the statutory prescriptive periods promulgated by the Legislature. But again, we 119presently decline to find that La. R.S. 9:5628 unconstitutionally deprived Mrs. Russo of access to the courts under the facts of this case.

In Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984)(en banc), the ' Supreme Court of Arizona addressed the question of whether its three-year statute of limitations for medical malpractice actions was constitutional. The plaintiff therein could not have known that her doctor committed malpractice until approximately six years after the “injur/’ took place. The trial court granted the defendant health care providers’ motion for summary judgment, which was reversed by the intermediate appellate court. The Supreme Court granted review.

When reviewing the equal protection claim under the Arizona constitution, the Court applied a strict-scrutiny test similar to that of Louisiana: “Under this method a discriminatory statute may be upheld only if there is a ‘compelling state interest’ to be served and the regulation is ‘necessary’ to achieve the legislative objective.” Id. at 78, 688 P.2d at 970. To aid it in its determination, the Court relied on the evidence in the record:

The parties seem to agree that the statistics contained in the Report of the Secretary’s Commission on Medical Malpractice, supra at 254, indicate that over 88% of all medical malpractice injuries which result in claims are reported within the first two years following injury, that 95 to 96% of all claims have been reported within three years, 97% within four years and only 2% are unreported after five years. ATLA Amicus Brief at 3; defendant’s supplemental brief at 17; see also S. Law and S. Polan, Pain and Profit: The Politics of Malpractice 122-23 (1978), quoting the National Association of Insurance Commissioners study of claims paid from July of 1975 through June of 1976. These statistics indicate to us that the “long tail” caused by the discovery rule is not a significant portion of the problem. If prompt actuarial certainty is required, reduction of the statute of limitations would have been a much more rational method of achieving the compelling state interest than abolition of the discovery rule and consequent abrogation |anof the few and unusual claims where, because of lack of knowledge or disability, the claimant was unable to bring the action within the flat time limits.

Id. at 86, 688 P.2d at 978.

Although we find that Kenyon was sufficient evidence for Arizona’s purposes to establish no insurance crisis existed in 1975, being the same time frame of when La. R.S. 9:5628 was first enacted or when subsequent substantive amendments were passed, no evidence exists in the appellate record before us that the small percentage of claims that might be filed by an injured party would have any effect on either healthcare costs, malpractice insurance premium rates, or the affordability of healthcare in Louisiana. To be certain that such was the case in Louisiana in 1975 and when substantive amendments to Section 5628 were enacted, we find that a remand is warranted. Thus, we find that a Sibley hearing is warranted for the purpose of placing into evidence the necessary testimony, documents, and other evidence to permit the trial court to reach a conclusion.

Based on the foregoing, we do not presently hold or find La. R.S. 9:5628 unconstitutional as applied to the narrow group identified above. Consequently, we reverse the summary judgments and exception of prescription granted by the trial court. We remand the matter for further proceedings consistent with this opinion. At the Sibley hearing, the court should consider, inter alia, (a) whether the proper parties plaintiff are before the court (see footnote 1, supra), (b) whether a medical insurance crisis existed when La. R.S. 9:5628 was enacted (and when the statute was later substantively amended), and (c) if Mrs. Russo’s disease is one of the nineteen diseases cited in Whitnell, supra, or should be added to the list.

REVERSED; REMANDED.

BONIN, J., Concurs with Reasons.

BONIN, J.,

concurs with reasons.

hi respectfully concur in the reversal of the summary judgment granted in this matter as well as the judgment sustaining the exception of prescription and in the remand of this case to the trial court.

Basically, Dr. Kraus and the State put the cart before the horse in seeking a summary judgment in an action to declare a statute unconstitutional before a finding by the court or by stipulation that Ms. Russo (or her survivors) have standing to challenge the constitutionality of a portion of La. R.S. 9:5628 A as applied to her. Unless and until there is a finding that Ms. Russo’s condition was in fact not discoverable within the three year period contairied in the statute, there is no need to reach or decide any constitutional issues in this case. See Whitnell v. Silverman, 95-0112 (La.12/6/96), 686 So.2d 23, 32 (Kimball, J., concurring). The parties cannot accept the standing of the challenger arguendo, or for the sake of the argument, as if the unconstitutionality of a statute is purely a question of |2law, which it is not. See In re Melancon, 05-1702, p. 9 (La.7/10/06), 935 So.2d 661, 667. Without proof of a challenger’s standing, a court would simply be deciding (without authorization) the statute’s application to third parties “in hypothetical situations.” See Whitnell, 686 So.2d at 25-26. Of course, if Ms. Russo, just like Ms. Whitnell, does not have standing, this case can, and must, be disposed of on non-constitutional grounds without any determination of the statute’s constitutionality. See Ring v. State, 02-1367, p. 4-5 (La.1/14/03), 835 So.2d 423, 426-427.

Accordingly, I emphasize the option of the trial judge to bifurcate at the Sibley hearing the discrete factual issue which is whether Ms. Russo’s condition was discoverable within the three-year period. (See Opinion, n. 12, ante.) Only after Ms. Russo has established that she is within the class of individuals disadvantaged by the statute’s provisions need the trial judge conduct the remainder of a Sibley hearing. See Whitnell, 686 So.2d at 30; see also Sibley v. Board of Supervisors of Louisiana State university, 477 So.2d 1094, 1104 (La.1985). On this discrete issue my view is that unless the nineteen-disease list of Dr. Stuart Hoffman is introduced into evidence in this case, it is irrelevant; that list has been neither repudiated nor ratified by our Supreme Court. See Whitnell, 686 So.2d at 29 (“We further hold that the trial court erred in admitting into evidence Dr. Stuart Hoffman’s testimony regarding the list of diseases with latency periods in excess of three years, for such evidence was irrelevant in this case.”). Dr. Hoffman’s list is not binding on the trial court or any other court.

Additionally, I suggest that our remand instruction to the trial court to inquire into whether “a medical insurance crisis existed” when § 9658 was enacted or later amended is lagniappe. The parties are entitled to introduce as they see fit relevant evidence dependent upon the classification of Ms. Russo’s “situation”. See Sibley, 477 So.2d at 1107-1108.

      . The record on appeal does not indicate whether the succession representative or the heirs of Janice Russo have been properly substituted as parties plaintiff. See La. C.Cr.P. arts. 648, 801 et seq., and 821. We presume that has happened because this matter has proceeded to this stage — submitted to this court for decision.

      . A low grade squamous intraepithelial lesion is a type of abnormal growth of squamous cells on the surface of the cervix. Squamous cells are flat, scale-like types of epithelial cells. Epithelial cells are cells that help absorb, move, and distribute some of the fluids and nutrients in the body. The cervix is a small, cylinder-shaped organ that forms the lower part and neck of the uterus. Having a low grade squamous intraepithelial lesion does not mean that cancer is present. Cancer is an abnormal growth of new tissue characterized by uncontrolled growth of abnormally structured cells that have a more primitive form. The presence of low grade squamous intraepithelial lesions represents changes in cells that may occur before cancer is present. Thus, low grade squamous intraepithelial lesions are sometimes seen by doctors as warnings that cancer of the cervix may occur at a later date. See http://www.medfriendly.eom/l owgradesquamousintraepitheliallesion.html

      .Cervical dysplasia is a common condition that describes abnormal precancerous changes to the cervix. Abnormal changes can range from mild to severe and are detected through a routine PAP smear. Although untreated cervical dysplasia may lead to cervical cancer in some cases, having cervical dyspla-sia does not mean a person has cancer or will even develop the disease. See http://cervical cancer.about.com/od/ceivicaldysplasia/a/ dysplasia.htm

      . See Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985). A Sibley hearing gives the parties an opportunity to present evidence regarding the constitutionality of a medical malpractice statute.

      . The defendants/appellees rely on State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, which examined, inter alia, the constitutionality of La. R.S. 14:89 A(l), crime against nature. The court found the statute facially neutral and then addressed the issue of whether the statute was enacted because of a discriminatory purpose. The Court determined that the statute did not punish one class of persons more than any other class of persons and, thus, was constitutional. This, however is not the test when addressing the constitutionality of a part of the Medical Malpractice Act and a challenge that the statute in question discriminates on the basis of physical condition. See Sibley, supra.

      . See also Whitnell v. Silverman, 95-0112, p. 4 (La.12/6/95), 686 So.2d 23, 26, wherein the Court stated:
      On writ of review, we granted in part and denied in part. Although we agreed that the trial court correctly concluded that the doctor did not prevent the timely filing of plaintiffs’ action intentionally, fraudulently, or by ill practice, we remanded the case to the trial court for an evidentiary hearing and ruling on whether La. R.S. 9:5628 is unconstitutional. Pursuant to this Court’s order, the trial court conducted a Sibley hearing on the constitutionality of La. R.S. 9:5628, and concluded that the statute, as applied to plaintiffs, was constitutional. [Emphasis supplied; footnote omitted.]

      . The plaintiffs/appellants have made no claim of sexual discrimination because only women may contract the disease of which Mrs. Russo died.

      . This court found the best explanation was given by actuary Robert E. Lowe.
      Perhaps the best explanation is given by actuary Robert E. Lowe. Initially Mr. Lowe noted that the insurance industry is exempt from antitrust laws. Mr. Lowe testified that the insurance industry undergoes regular 10 year cycles which include a "crisis” every ten years. We have had insurance crises in 1975, 1985, and are due one in 1995. These cycles are well known in the literature and have been discussed by academic writers and industry analysts for decades. The cycles are caused by underpricing by the industry itself. In order to compete for the premium dollar while still maintaining market share, insurance companies will underprice premiums for a period of time. Because they are all competing with each other for the same premium dollar and market share, they will all under-price at the same time. Mismanagement of pricing by the companies themselves creates a depletion of surplus, of loss reserves, such that pricing must increase over a short period to make up for the reserve depletion. As the pricing increases, it places strain on the insurance companies to absorb business. There is a relationship between the amount of business a company can write and the size of its surplus. When the surplus is depleted, its capacity to write new business decreases drastically. In order to add increasing prices in a short period of time at a rapid rate, the insurance companies must dispose of some business. Which business they dispose of is entirely within their control and entirely arbitrary, but the companies dispose of the business which they perceive to be more troublesome, such as medical malpractice and environmental. This disposal of business is a commonly recognized phenomenon in the insurance business and has been written about by many industry commentators. The insurance companies dispose or dump certain kinds of business by simply refusing to write certain lines. One such example is pollution insurance: it is impossible to buy pollution insurance today because companies refuse to write it. Id. at p. 7, 646 So.2d at 994.

      Mr. Lowe also testified that in 1975 and prior thereto, medical malpractice insurance statistics were not separately compiled or required to be separately reported to the Insurance Commissioner’s Office. Thus there was no Louisiana medical malpractice information available at the time that the statute was passed. Mr. Lowe also noted that the Louisiana Insurance Commissioner’s Reports from 1965 to 1970 did not include the insurance companies' investment income. Id. at p. 8, 646 So.2d at 994.

      . As noted in Walker, see Jeter v. Shamblin, 34,225 (La.App. 2 Cir. 12/6/00), 774 So.2d 1071; Martini v. Louisiana State University Medical Center-Shreveport, 28,167 (La.App. 2 Cir. 1/22/97), 688 So.2d 642; In re Medical Review Panel of Conerly, 02-0485 (La.App. 5 Cir. 12/30/03), 865 So.2d 198; Hardy v. Blood Systems, Inc., 01-0134 (La.App. 3 Cir. 5/2/01), 794 So.2d 13; Trahan v. Our Lady of Lourdes Regional Medical Center, Inc., 00-1140 (La.App. 3 Cir. 1/31/01), 778 So.2d 1205; Neal v. Pendleton Memorial Methodist Hospital, 99-0040 (La.App. 4 Cir.4/21/99), 733 So.2d 698; In re Medical Review Panel of Brown, 97-2803 (La.App. 4 Cir. 7/1/98), 715 So.2d 1249; Doe v. Southern Baptist Hospital, 98-0063 (La.App. 4 Cir. 5/6/98), 717 So.2d 654. But see In re Matter of Trahan, 03-1002 (La.App. 5 Cir. 1/27/04), 866 So.2d 907, a case involving a claimant with a disease with a latency period in excess of three years, in which the Fifth Circuit, finding that the constitutional question was not properly before it for review, set aside the judgment sustaining the defendant's exception of prescription and remanded the matter to the trial court to allow the plaintiff an opportunity to properly litigate the constitutional challenge.

      . The Court stated:
      Bossier Medical Center and the State of Louisiana seek review of a judgment of the court of appeal which declares La. R.S. 9:5628 unconstitutional. Pretermitting the merits, we observe that the court of appeal’s opinion in the present case appears to be in conflict with Williams v. Jackson Parish Hospital, 33,847 (La.App. 2 Cir. 10/20/00), 768 So.2d 866, reversed on other grounds, 00-3170 (La.10/16/01), 798 So.2d 921, in which a different panel of that circuit found La. R.S. 9:5628 to be constitutional. The majority opinion in the case at bar does not distinguish Williams, nor does it overrule that decision.
      In light of this apparent conflict within the circuit, we find it appropriate to vacate the judgment of the court of appeal and remand the case for an en banc hearing. See, e.g., Lamson Petroleum v. Hallwood Petroleum, 02-1338 (La.10/25/02), 832 So.2d 975.

        Id.

      . In David, the plaintiff contracted Hepatitis C from a blood transfusion following surgery at Our Lady of the Lake Hospital. Hepatitis C is recognized as a disease with a latency period in excess of three years.

      . The trial court may, in its discretion, bifurcate the trial of this issue from the remainder of the Sibley hearing issues as discussed in this opinion below.


author:
TERRI F. LOVE, Judge.
      ARMSTRONG, C.J.,

text:
    Casey BILLIESON, et al. v. CITY OF NEW ORLEANS, et al.
    No. 2010-C-1034.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.

      John K.Etter, Roy J. Rodney, Jr., Rodney & Etter, L.L.C., New Orleans LA, for Housing Authority of New Orleans.
    Gary J. Gambel, Murphy, Rogers, Sloss & Gambel, Walter J. Leger, Jr., Leger & Shaw, Joseph M. Bruno, Bruno & Bruno, Jennifer N. Willis, Willis & Buckley, APC, Suzette Peychaud-Bagneris, The Bagneris Firm, L.L.C., Peter B. Sloss, Murphy, Rogers, Sloss & Gambel, Gilbert Y. Andry, IV, The Andry Law Firm, L.L.C., Deborah M. Sulzer, Law Offices of Deborah Sulzer, Roderick Alvendia, Law Offices of Alven-dia, Kelly & Demarest, New Orleans, Louisiana, for Plaintiff Class.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

li Uniform Rules, Courts of Appeal, Rule 4-9 provides that “Rules 2-18.1 through 2-18.7 apply to requests for rehearings related to writ applications.” Uniform Rules, Courts of Appeal, Rule 2-18.7 states:

An application for rehearing will be considered in cases where the court has:
(A) Granted a writ application on the merits;
(B) Dismissed an appeal; or
(C) Ruled on the merits of an appeal. This Court did not consider Relator’s
application for supervisory writ, as Uniform Rules, Courts of Appeal, Rule 4-5(C)(11) requires that “the submission [of an application for supervisory writs] shall contain ... the notice of intent and return order required by Rules 4-2 and 4-3.” (Emphasis added). Additionally, pursuant, to Uniform Rules, Courts of Appeal, Rule 4-3, “[t]he application for writs shall contain documentation of the return date and any extensions thereof; any application that does not contain this documentation may not be considered by the appellate court.”

Further, according to relator’s application for rehearing, the amendment to La. C.C.P. art. 153, as outlined by Acts 2010, No. 262, § 1, became effective |2August 15, 2010. Prior to its recent amendment, La. C.C.P. art. 153 read as follows:

Until a judge has recused himself, or a motion for his recusation has been filed, he has full power and authority to act in the cause.

La. C.C.P. art. 153, as amended by Acts 2010, No. 262, § 1, currently reads as follows:

Until a judge has recused himself, or a motion for his recusation has been filed, he has full power and authority to act in the cause. The judge to whom the motion to recuse is assigned shall have full power and authority to act in the cause pending the disposition of the motion to recuse.

Relator contends that because the amendment to La. C.C.P. art. 158 did not become effective until after it filed its writ application with this Court, this Court’s reliance on La. C.C.P. art. 153, as amended, was in error.

La. C.C. art. 6 provides as follows:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

In State v. Washington, 2002-2196, p. 2 (La.9/13/02), 830 So.2d 288, 290, the Louisiana Supreme Court held that a two-part inquiry under La. C.C. art. 6 was required in deciding whether a law should be applied retroactively:

First, it must be ascertained whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends.... [T]he second step is to classify the enactment as either substantive, procedural or-interpretative.

The Court went on and defined substantive, interpretive, and procedural laws as follows:

IsSubstantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of laws.

Id. at p. 3, 830 So.2d at 290, quoting Jacobs v. City of Bunkie, 98-2510, p. 8 (La.5/18/99), 737 So.2d 14, 20.

The amendment at issue does not “impose new duties, obligations or responsibilities upon parties,” nor does it “establish new rules, rights and duties or change existing ones.” Id. It is therefore not a substantive law. The amendment at issue clarified the meaning of the original law. See, Tatum v. Orleans Parish School Board, 2004-1190, p. 3 (La.App. 4 Cir. 1/26/05), 894 So.2d 1180 (“It has long been recognized in our civil procedure that once a judge is recused, or a motion for his recusal has been filed, he has no power to act (except to appoint the proper person to sit ad hoc [sic] when the law provides for such an appointment).”), quoting State v. Price, 274 So.2d 194, 197 (La.1973); see also, Klumpp v. Klumpp, 2006-1141, p. 2 (La.App. 3 Cir. 10/11/06), 941 So.2d 194, 195 (Appellate court remanded matter to trial court “in order for the order for appeal to be considered by a judge with jurisdiction in [the] case” where the trial judge signed the order for appeal after he recused himself.). The amendment at issue also seeks to prescribe a method for enforcing the rights of the parties after a judge has either recused him/herself, or a motion to recuse the judge has been filed. h The subject amendment is therefore both interpretive and procedural. As such, it applies both prospectively and retroactively.

REHEARING NOT CONSIDERED

ARMSTRONG, C.J., Concurs With Reasons.

ARMSTRONG, C.J.,

Concurs With Reasons.

_|jl agree that neither the writ application nor the application for rehearing should be considered. Uniform Rules— Courts of Appeal, Rules 4-2, 4-3, 4-5(C)(11) and 2-18.7.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Tyrone MITCHELL.
    No. 2010-KA-0193.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.
    Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for Appellant.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

|)The State of Louisiana appeals the trial court judgment granting the defendant’s motion to quash. After review of the record in light of the applicable law and arguments of the parties, we reverse the judgment of the trial court.

Relevant Facts and Procedural History

The defendant/appellee, Tyrone J. Mitchell, convicted in 1976 of forcible rape and sentenced to fifty years incarceration, was released in 2002. He was arrested on July 27, 2009, and charged by bill of information with failure to register as a sex offender in accordance with La.Rev.Stat. 15:542. He pleaded not guilty and filed a motion to quash, arguing that La.Rev.Stat. 15:542, enacted after his crime, violated ex post facto principles. After a hearing on December 8, 2009, the trial court agreed, granting the defendant’s motion, quashing the bill of information and ordering the defendant released from custody.

Discussion

In 2007 the Louisiana Legislature reenacted and redesignated several portions of La. R.S. 15:542. Specifically, the penalty portion of the statute was moved to La. R.S. 15:542.1.4, which provides in part:

A. (1) A person who fails to register, periodically renew and update registration, provide proof of residence or notification of Rchange of address or other registration information, or provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information to a law enforcement agency as provided in R.S. 15:542(0(3), shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence.

The defendant argues that the trial court did not err in granting his motion to quash because his conviction occurred pri- or to Louisiana’s enactment of sex offender registration requirements in 1995, and, accordingly, he was not required to register a sex offender. Further, he contends that retroactive application of La. R.S. 15:542 is expressly prohibited by the Ex Post Facto Clause of the United States Constitution, Art. I, § 10.

In State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01), 779 So.2d 735, the Louisiana Supreme Court determined that La. Rev.Stat. 15:542 penalty provisions do not warrant an ex post facto analysis:

Although La.Rev.Stat. Ann. § 15:542(F)(1) and (2) do indeed provide for punishment, the crime for failing to register under the statute is a separate offense. It is inconsequential that a pri- or conviction for sexual misconduct triggers the offense for failure to register. “It is hornbook law that no ex post facto problem occurs when the legislature creates a new offense that includes a prior conviction as an element of the offense, as long as the other relevant conduct took place after the law was passed.” Russell, 124 F.3d at 1088-89; see also United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997).

Olivieri, 2000-0172, pp. 22-23, 779 So.2d at 748.

Accordingly, the defendant in this case is being charged with an offense separate from that which formed the basis of his original conviction. Although his prior conviction for forcible rape forms an element of the offense set out in La^Rev.Stat. 15:542.1.4, the State will not be able to secure a conviction unless it can show that the defendant also failed to comply with the various registration and notification requirements set out in the statutes. In other words, La.Rev.Stat. 15:542.1.4 does not present an ex post facto problem because any conviction based upon this statute is dependant upon proving that other relevant conduct took place after the statute’s passage, i.e., a defendant’s failure to register as a sex offender. Accordingly, the trial court erred when it concluded that the defendant’s prosecution for failure to register as a sex offender violated ex post facto principles.

Conclusion

The judgment of the trial court is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . The defendant acknowledges Olivieri, but argues that La.Rev.Stat. 15:542, and its progeny, has been changed and amended so many times since its initial enactment that Louisiana Supreme Court’s examination of the statute in Olivieri is ripe for revisiting. Such an argument to this court is meritless.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Mark B. BRIGNAC.
    No. KA 10-276.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      J. Phillip Haney, District Attorney, New Iberia, LA, Renee M. Louviere, Jeffrey J. Trosclair, Assistant District Attorney, Sixteenth Judicial District Court, Franklin, LA, for PlaintiffAppellant, State of Louisiana.
    James Kirk Piccione, Piccione & Pic-cione, Lafayette, LA, for Defendant/Appel-lee, Mark B. Brignac.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

| ,On August 7, 2006, the State filed a bill of information charging Defendant, Mark B. Brignac, with stalking, a violation of La.R.S. 14:40.2. Arraignment took place on September 18, 2006. At that time, Defendant received notice in open court of a number of court dates, including a pre-trial conference set for October 31, 2006. On the latter date, Defendant was not present, nor was any counsel present on his behalf. The State moved to continue the matter without date.

The court convened on November 16, 2006; again, neither Defendant nor his counsel were present. The State moved to continue the case, setting various matters, such as a plea date and a trial date, for August and September 2007. Proceedings on September 11, 2007, were similar to the previous two dates, and the State moved to continue the case until October 2007. In October, the pattern repeated, and the State moved to continue to January 2008, with a motion date in December 2007. On January 9, 2008, the State moved to continue without date.

On January 14, 2008, as on the previous dates, Defendant and counsel were not present. The State moved to continue the matter, setting a number of dates for 2008, including a plea date of February 28, and a trial date of March 10. The State advised the court it would contact Defense counsel to have Defendant appear for service. The trial court conducted a pretrial conference on February 26, 2008; Defendant appeared with new counsel, Kirk Piccione, who enrolled at that time. On joint motion by the parties, the court set new dates, including another pretrial conference date, April 22, 2008. The court reconvened on that date, and Defendant moved for a continuance. The court set another new pretrial conference date, August 19, and set the trial date as September 2, 2008.

On August 19, 2008,- the case was again continued, this time on joint motion. On October 20, on motion of the State, it was continued without date. Court did not [ ¡.convene again until January 15, 2009; neither Defendant nor counsel were present. On motion of the State, the matter was again continued. On February 9, the case was continued by joint motion; Defendant received notice in open court. The case was again continued, this time on Defendant’s motion, on April 20, 2009.

On May 26, 2009, the court held a.hearing on Defendant’s motion to enforce an alleged plea agreement. Defendant sought dismissal of the instant charge, but the trial court denied the motion. On June 22, the case was again continued, on Defendant’s motion. The matter was continued on Defense motion in August. In October, the matter was again continued on a Defense motion. Defendant was not present, but the court allowed Piccione to take service on his behalf.

On November 30, 2009, the court heard Defendant’s motion to quash, which was based upon the expiration of the statutory time limit to bring the charge to trial. After hearing argument, the court granted the motion.

The State now appeals, assigning two errors.

PROCEDURAL NOTE

Although the trial court found this case involved a misdemeanor, appeal is still proper. The State may appeal adverse rulings on motions to quash and/or pleas of time limitation. La.Code Crim.P. art. 912(B)(1) and (2). Also, La. Const, art. 5, § 10(A) grants this court jurisdiction in cases triable by jury. Since La.R.S. 14:40.2(B)(1)(a) allows for a possible one-year sentence, this case was triable by jury. La.Code Crim.P. art. 779. See State v. Barr, 00-1787 (La.3/9/01), 781 So.2d 1249.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We note that the present appeal, unlike most appeals, was filed by the State rather than Defendant. We find that Article 920, read | sIiterally, requires an error patent review in all appeals. Thus, we reviewed the present record for errors patent. After reviewing the record, we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

In its first assignment of error, the State argues that the trial court should not have addressed the question of whether the present charge is a misdemeanor or a felony. In the State’s view, the issue should have been decided by a jury. It claims that when it filed the bill of information with the district court clerk’s office, it attached a cover letter indicating that this case was a felony. Also, it states that in February 2009, the trial court issued a “Felony Pre-trial Order” in the case. Further, the State contends the case was scheduled in a manner indicating that it was a felony.

The core of the assignment appears to be the State’s argument (also made at the hearing below) that a jury should have decided whether the charge was a misdemeanor or a felony. This argument is based upon cases related to sentencing, such as Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As the State notes, the gist of these cases is that if an increase in punishment is contingent upon a finding of fact, that fact must be found by a jury.

Such an issue is of a completely different genera than the one at hand. This is illustrated, at least in part, by the impracticality of applying the Apprendi/Ring principle to a pre-trial matter such as the present one. Where time limitations are at issue, the question of whether a charge is a misdemeanor or a felony may often arise. Pursuant to La.Code Crim.P. art. 578, trial in a noncapital felony case must be | commenced within two years of the institution of prosecution, while in a misdemeanor case, the trial must be commenced within one year.

Obviously, a plea of time limitation is a legal question that must be resolved by a judge, rather than a lay jury. Similarly, the question of whether a particular offense is a misdemeanor or a felony, is one that must be resolved relative to issues such as time limitation, availability of appeal, or whether a defendant is entitled to a jury. In such contexts, it is a matter of legal classification, and thus not a question for a jury.

As La.Code Crim.P. art. 577 explains, in pertinent part, “The issue that a prosecution was not timely instituted may be raised at any time, but only once, and shall be tried by the court alone. If raised during the trial, a hearing thereon may be deferred until the end of the trial.” (Emphasis added).

For the reasons discussed, we find that in the context of resolving the time limitation issue, the classification of the present offense as either felony-or misdemeanor-grade was for the court, not the jury.

Further, the trial court’s classification of the offense as a misdemeanor was correct. The language in the bill of information contains only the basic language of La.R.S. 14:40.2(A), which sets forth the elements common to both grades of stalking. Further, at the hearing on the motion to quash, the State conceded that the grade of the offense was the only issue to be resolved. Nonetheless, it relied only on argument and made no showing that the offense was felony-grade. The prosecutor did not make any assertion that the State had evidence that would have made the offense felony-grade.

The State argued, as it also does now, that “all along” it had proceeded in the matter as if the offense were a felony. However, neither notice to Defendant nor specificity of the bill are at issue. The prosecutor stated that its assertion had been |fidiscussed at a previous hearing on a separate motion to quash and that it could call a witness from that hearing. However, it made no attempt to introduce a transcript of that hearing and did not call any witnesses. On the core issue of whether the offense before the court is a misdemeanor or a felony, the State made no showing at all in the hearing below and does not do so on appeal.

For the reasons discussed, the assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In its second assignment of error, the State argues the trial court erred by quashing the bill on the grounds that the statutory time period for commencing trial had prescribed. La.Code Crim.P. art. 578. The State conceded this issue at the hearing on the motion to quash. We note the relevant colloquy:

BY MS. LOUVIERE [Prosecutor]:
Judge, the—
BY THE COURT:
Well let me ask first, is there any controversy regarding the time period that lapsed or we’re just talking about whether it’s a felony or misdemeanor?
BY MS. LOUVIERE:
There’s no contro — it’s just whether or not it’s a felony or misdemeanor.
BY THE COURT:
Okay. So if it’s a misdemeanor he wins, if it’s a felony he loses.
BY MS. LOUVIERE:
Correct.
BY THE COURT:
Okay. All right. Proceed.

1 fiThus, the State may not contest this issue for the first time on appeal. Uniform Rules — Courts of Appeal, Rule 1-8. See also State v. Shank, 05-421 (La.App. 5 Cir. 2/14/06), 924 So.2d 816, writ denied, 06-1176 (La.11/17/06), 942 So.2d 531; State v. Green, 36, 741 (La.App. 2 Cir. 3/5/03), 839 So.2d 970, writ denied, 03-973 (La.11/7/03), 857 So.2d 517.

CONCLUSION

The trial court’s ruling is affirmed.

AFFIRMED.

      . State v. Gutweiler, 06-561 (La.App. 3 Cir. 9/27/06), 940 So.2d 160, writ granted, judgment affirmed in part, reversed in part on other grounds, 06-2596 (La.4/8/08), 979 So.2d 469.