author: SUSAN M. CHEHARDY, Judge.

text:
    Jeannine BOUDREAUX v. Melvin L. PARNELL, Jr., M.D.
    No. 11-CA-631.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.

      Murray A. Roth, Jr., Attorney at Law, Metairie, LA, for Plaintiff/Appellant, Jeannine Boudreaux.
    Franklin D. Beahm, A. Rebecca Wil-more, Attorneys at Law, New Orleans, LA, for Defendants/Appellees, Melvin L. Parnell, Jr., M.D. and Louisiana Medical Mutual Insurance Company.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

|2This is a medical malpractice suit in which the plaintiffs claims were dismissed after a bench trial. The plaintiff appeals. We affirm.

The issues are whether the radial nerve palsy that developed in the plaintiffs right arm after shoulder surgery was either caused or worsened by the defendant surgeon’s failure to x-ray the surgery site, and whether the defendant provided sufficient information to enable the plaintiff to give informed consent as required by law.

Due to rheumatoid arthritis that severely affected her right shoulder joint, Jeannine Boudreaux underwent shoulder replacement surgery by Dr. Melvin Parnell, an orthopedic surgeon, on August 15, 2001. The procedure is known medically as hem-iarthroplasty of the right shoulder with replacement of the humeral head. Following the surgery Ms. Boudreaux developed radial nerve palsy that ultimately became permanent and disabling.

In hemiarthroplasty, the surgeon uses a medical drill to ream a canal down into the top portion of the upper arm (humerus), which is filled with surgical cement. A prosthetic device consisting of an artificial shoulder “ball” and a long shaft is then inserted into the cement-filled canal. The prosthetic device replaces the natural mechanism of the upper arm where it sits inside the shoulder socket. | ...Fractures of the upper arm are a known risk of this type of surgery, as is extrusion of the cement through the fracture (with potential neurological injury).

It is not disputed that Ms. Boudreaux’s humerus was fractured during the surgery on August 15, 2001, that a large amount of surgical cement leaked through the fracture, and that Dr. Parnell did not inform her of the fracture or the cement extrusion that occurred during the surgery. Dr. Parnell was not aware that this had happened. As a result, a large amount of extruded cement hardened around the radial nerve in her upper arm.

Although Ms. Boudreaux’s radial nerve was functioning immediately after the August 15, 2001 surgery, she was having difficulty extending her fingers. In the medical records, Dr. Parnell documented her difficulty as a form of radial nerve palsy. Dr. Parnell did not order x-rays of her arm at any time, either immediately after the surgery or at several more postoperative visits over the course of several months, although her inability to move her hand and fingers progressively became worse.

Approximately eight months after the surgery, Ms. Boudreaux required treatment at the emergency room of St. Tammany Parish Hospital because of sudden pain in her right arm and shoulder. Hospital x-rays disclosed there was a substantial amount of cement surrounding her right humerus. Even after Dr. Parnell was given a copy of the hospital x-rays on her next visit to him, he did not order x-rays or other tests of her arm to determine the severity of the condition. Ms. Boudreaux subsequently learned that the damage to her radial nerve is permanent.

By the time of trial, Ms. Boudreaux had very little movement in her right arm, wrist and fingers. Her right arm is in a state of paralysis. She was 42 years old at the time of the original surgery.

| PROCEEDINGS BELOW

Ms. Boudreaux filed a complaint with the Louisiana Patient’s Compensation Fund and her claim underwent medical review panel proceedings. The medical review panel concluded the evidence does not support the conclusion that Dr. Parnell failed to meet the applicable standard of care as charged in the complaint. The panel found that the conduct complained of was not a factor of any resultant damages to plaintiff.

Thereafter Ms. Boudreaux filed this lawsuit against Dr. Parnell and his insurer, Louisiana Medical Mutual Insurance Company. She asserted that Dr. Parnell was negligent and breached the standard of care because he failed to perform a post-surgery x-ray of the site to detect the fracture and he failed to properly treat the radial nerve palsy she suffered as result of the cement extrusion. She alleged she will be required to undergo additional surgeries in the future. She also alleged she was not provided with sufficient information before the surgery to enable her to give valid informed consent for the procedure.

In answer to the suit, Dr. Parnell responded that all members of the medical review panel had concurred that he met the applicable standard of care as an orthopedic surgeon in his treatment of the plaintiff. He denied that the plaintiff suffered any complications through his fault, asserting any such resulted from natural causes and illnesses or through an act or omission of some third person or of the plaintiff herself.

|BThe case was tried on July 26, 2010, in a bench trial. The court took the matter under submission and rendered judgment in favor of the defendant on October 8, 2010. In written reasons for judgment, the court made the following findings, in pertinent part:

All of the medical experts agreed that bone fractures and cement extrusions are known complications of shoulder replacement surgery. They also concurred that the plaintiff was an appropriate candidate for shoulder replacement surgery and that the injury at issue occurred during the surgery. The plaintiffs expert, Dr. Frank Barnes, testified in his deposition that he had no criticisms of Dr. Parnell’s surgery. The only criticism that Dr. Barnes raised was the failure to take an x-ray within 24 hours after surgery. The defendants’ experts testified, however, that the standard of care does not require a post-operative x-ray. These experts further testified that even if Dr. Parnell had completed a post-operative x-ray, it would not have changed the outcome because the damage had already occurred to the radial nerve.
Furthermore, all of the medical experts, including Dr. Barnes, agreed that the standard of care with respect to the treatment of radial nerve palsy is to wait and monitor the patient’s recovery. The evidence indicated that an EMG study of the nerve would not provide any insight as to whether an injury occurred until at least eight weeks following the surgery. The surgery occurred on August 15, 2001, and Dr. Parnell’s October 4, 2001 office notes state that he would recommend EMG and nerve conduction studies if he did not find a significant change in the radial nerve findings by the next visit. However, the plaintiff failed to return for her next follow-up visit with Dr. Parnell, and did not return to see Dr. Parnell again until April 30, 2002.
Plaintiff invites this Court to find that medical malpractice occurred despite the lack of expert evidence as to a breach of any standard of care. This is not an obvious case of negligence by a health care provider, particularly since bone fractures and cement extrusions are known complications of shoulder replacement surgery. The Court has no choice but to dismiss Ms. Boudreaux’s medical malpractice claims due to her failure to prove that Dr. Parnell committed a breach of the standard of care.
| fiWith respect to the lack of informed consent claim, the plaintiff complains that Dr. Parnell failed to inform her of the risk of cement extrusion. She further contends that her consent form is invalid because Dr. Parnell’s name is not filled in on the consent form and he did not sign the form.
Dr. Parnell’s office notes from August 13, 2001, two days prior to the surgery, indicate that he discussed the shoulder replacement procedure surgery with her in detail. The plaintiff signed an informed consent form prior to the surgery. While the form did not specifically refer to cement extrusion, it explained that neurological injuries and bones fractures were a possible complication of the surgery. The plaintiff testified that she did not read the form and nothing prevented her from doing so. Furthermore, the law cited above does not require the name of the doctor or the doctor’s signature to be included on the form.
When a patient consents in writing to medical treatment pursuant to Louisiana’s Uniform Consent Law, the plaintiff must present evidence that the consent was induced by a misrepresentation of material facts.... Plaintiff failed to prove any misrepresentations and therefore, the Court must also dismiss her informed consent claim.

ISSUES ON APPEAL

On appeal, the plaintiff asserts the trial court was clearly wrong in the following respects: (1) concluding that the plaintiff suffered permanent, complete and irreparable paralysis of her arm immediately during surgery, as opposed to injury that developed over time with a likelihood of full recovery if the cement were removed; (2) concluding that the defendant did not violate any duty to the plaintiff, when the defendant failed to perform any x-rays of the plaintiffs right shoulder either after surgery or during three post-op visits; (3) failing to find that the defendant owed a duty to the plaintiff that was breached to advise her after surgery of the possibility that fracture and cement extrusion could have occurred during surgery; (4) concluding there was no expert testimony to establish a breach of the standard of care, when more than one expert opined that post-operative xjrays7 are standard, especially if the patient is suffering complications from surgery; and (5) concluding that the defendant complied with the Informed Consent Law.

In opposition to the appeal, Dr. Parnell argues that the trial court’s judgment is fully supported by the evidence introduced at trial, it is not clearly wrong or manifestly erroneous and, therefore, it should not be disturbed. He contends further that the plaintiff failed to carry her burden of proof under La. R.S. 9:2794 and that she failed to prove that Dr. Parnell did not obtain informed consent for the surgery.

EVIDENCE

Dr. Parnell’s notes state that on July 2, 2001, Ms. Boudreaux came to him complaining she had had severe pain in her shoulder for more than a month, could not raise her arm above her shoulder, and the pain was getting worse. The doctor’s notes of his physical examination comport with her complaints. He concluded that due to her severe arthritis, she was a candidate for a shoulder replacement. Dr. Parnell had performed orthopedic surgery on Boudreaux four times previously.

The doctor’s notes indicate that Ms. Boudreaux returned on August 13, 2001, and that he discussed the procedure in detail with her, showed her x-rays of other patients who had had shoulder replacements, and told her what to expect post-operatively. The surgery was scheduled for August 15, 2001.

Ms. Boudreaux testified, however, that she never made an office visit on August 13, 2001; further, she said, Dr. Parnell never discussed the risks of surgery with her in detail. She recalled only one discussion of her shoulder, in July 2001. She testified that on August 13, 2001, she was at the hospital most of the day, doing the prep work for the surgery — undergoing blood tests and chest x-rays, and signing papers for the anesthesiologist and the hospital.

|RShe admitted that she did not read the paperwork. She knew the paperwork was her consent to have the surgery and that if she did not sign the papers, she could not have the surgery. She said the only person who discussed risks of surgery with her was the anesthesiologist, and he talked only about the risks of anesthesia.

Ms. Boudreaux said she did make an office visit on August 14, 2001, because her ankle — on which Dr. Parnell had performed surgery previously — was bothering her and she was afraid of undergoing the shoulder surgery with her ankle hurting. She called the doctor’s office about it on August 13, and they gave her an appointment for the next day, August 14. She saw the doctor on August 14 and he reassured her that the ankle would not be a problem during the surgery. She denied there were any discussions of the shoulder surgery during her visit on August 14.

The next day, August 15, 2001, Ms. Bou-dreaux underwent the shoulder replacement surgery. During the procedure, Dr. Parnell cut open the right shoulder, removed the shoulder joint, and inserted an artificial shoulder joint. To do this he hand-reamed a canal into the humerus, mixed surgical cement, and filled the canal with cement. He then inserted the prosthesis, which consists of a long shaft that is inserted into the hollowed-out humerus and a ball that replaces the shoulder joint. After the cement hardened, the shoulder was reduced (re-aligned). Ms. Boudreaux tolerated the surgery with no complications and was in stable condition in recovery. Dr. Parnell’s post-surgery discharge summary states,

Postoperatively she has done very well. She has minimal discomfort. She did develop a radial nerve palsy and has a flicker of extension of the long finger, but sensation in the distribution of the radial nerve appears to 19be normal, and I feel the patient more than likely has just a neuropraxia.
Overall the hospital course was one of continued improvement. At the present time it is felt that her medical problems are stable and she is discharged at this time in satisfactory medical condition.

Ms. Boudreaux testified that when she woke up after the surgery, she not only had surgery pain in the shoulder, but also pain right above her elbow joint. She said it was “extremely painful” and that it hurt from her elbow all the way down her arm to her wrist, hand, and fingers. She said she let the doctor know about it, and he told her it most likely was swelling and bruising from regular manipulation during surgery and it would start getting better. She was discharged from the hospital on August 17, 2001.

According to Ms. Boudreaux, she saw Dr. Parnell for her first post-operative visit on August 28, 2001. She said they discussed the pain she was having and the fact that it was in her elbow rather than her shoulder. Her shoulder was still sore from the surgery, but most of her pain was in the elbow and hand, and she was losing the ability to open up her hand.

In Dr. Parnell’s notes, however, he states that on August 28, 2001, “The patient called and wanted to know if she could change her medication from Oxycontin to something not as strong.... She said that her arm is not hurting as much because she has not been using it as much.... ” The doctor’s notes do not indicate there was any office visit on August 28th.

Instead, the doctor’s notes indicate that September 4, 2001, was Ms. Boudreaux’s first post-operative visit. The notes state,

The patient ... reports that she is doing okay following discharge from the hospital. Physical [inexamination shows the incision to be healed.... There is marked limitation of shoulder motion with some pain at extremes of motion and a lot of this is due to muscle weakness. With the right wrist allowed to fall into plantar flexion, the patient is unable to extend the fingers of the right hand[;] however with the wrist in the neutral position, the patient can extend the fingers of the right hand. I told her that the nerve is still functioning, but I think that everything is just bruised and contused and ... this should continue to improve with time and therapy.

Ms. Boudreaux testified she complained to Dr. Parnell that she was in pain. She was unable to extend the fingers of her right hand with the right wrist in flexion. She testified that Dr. Parnell told her the condition was neuropraxia, and that it resulted from bruising due to manipulation during surgery. He said it would heal gradually and ordered physical therapy three times a week for the next month. She was to return in one month.

The medical record shows that Ms. Bou-dreaux returned on September 11, 2001, because the incision had opened up somewhat. Dr. Parnell determined that she appeared to have had a stitch suture reaction. He removed the remaining subcutaneous sutures and instructed her on daily wound care. His notes state she had an appointment to see him in one week (which would have been September 18, 2001).

According to Dr. Parnell’s notes, on September 18th Ms. Boudreaux called the doctor’s office to request a refill of her Lortab medication, which was given to her. The notes also state that she called again on September 28 to request another refill of the Lortab, but the refill was denied because it was too soon.

The notes indicate that Ms. Boudreaux did not return for a follow-up visit until October 4, 2001, at which time the doctor noted:

The patient ... reports that she is doing a little bit better. Physical examination shows mild decreased range of motion of the right shoulder with some mild discomfort at the extremes of motion. The stability of the ^prosthesis appears to be good. She is developing increasing strength and tone in the muscles about the right shoulder[;] however she still does not have active extension of the fingers of the right hand, and the radial nerve palsy remains unchanged.

Dr. Parnell ordered electrical stimulation be added to Ms. Boudreaux’s physical therapy. He told her to return in three weeks and, if there was no significant change in the radial nerve findings, he would recommend electromyography and nerve conduction studies. According to Dr. Parnell, Ms. Boudreaux had a visit scheduled for October 25, but did not show, and another visit scheduled for November 13, but she did not show up for that one either. Ms. Boudreaux did not return to Dr. Parnell until more than six months after the October 4 visit.

Ms. Boudreaux testified she stopped going to physical therapy after only five treatment sessions because she was doing physical therapy on her own at home. She said she failed to return to Dr. Parnell because she was not aware of the “urgency” to do so, despite the scheduled appointments.

Approximately eight months post-surgery, Ms. Boudreaux heard a cracking sound when she lifted a box. She sought treatment at a hospital emergency room, where x-rays revealed there was a fracture in the humerus and there was hardened surgical cement surrounding the entire distal humerus.

She took the x-rays to Dr. Parnell in a visit on April 30, 2002. Dr. Parnell’s notes state,

She went to the emergency room and states that they told her that she had pulled muscles off the bone and now it fell down her arm. She denies any previous problems with her right shoulder recently....
Physical examination shows right shoulder motion limited to approximately 50 percent of normal. The stability of the prosthesis appears to be good. Significant discomfort, however, is noted at the extremes of motion. The patient does have retraction of the biceps muscle belly distally, consistent with a biceps tendon rupture. |12There is severe pain with stress loading of the midportion of the right humerus and the x-rays show the presence of a nondisplaced fracture through the humerus, in addition to the biceps tendon rupture....
I told the patient that although she has a ruptured tendon, the crack was probably the bone. There is some bone cement present distal to the tip of the prosthesis and apparently some of this extravasated from the shaft of the femur at the time of surgery[;] however now it is serving as a protective effect and it has essentially provided external fixation to the fracture site. I told the patient that the alignment looks pretty good and as far as the bone, nothing has to be done, we just have to let it heal. With regards to the biceps tendon, I told her that she could elect to undergo surgery for a tenodesis of the tendon to return the muscle to a more normal position or she could just simply let things heal and once the fracture is healed, begin physical therapy.... The patient would prefer to go the nonsurgical route, but I told her that if she changes her mind at any time, we could always consider surgery. I will see her back in two weeks for repeat x-rays and evaluation.

Ms. Boudreaux never returned to Dr. Parnell after the April 2002 visit. She testified she did not return to him because of the “mysterious diagnosis” of her x-rays. She said she wanted a definite answer as to what was going on with her arm.

Instead, she sought a second opinion from Dr. H. Reese Plauché, an orthopedic surgeon. Ms. Boudreaux testified she first saw Dr. Plauché on May 2, 2002. He took x-rays on that date. She said he told her that the fracture in the humerus went down her arm and that the mass she had been told was “fallen tendons” actually was cement that had come out and encase the bone all the way around. She said by that time she was having more difficulty with raising her arm, moving it from the elbow down, opening and closing her hand, and flexing her fingers.

Ms. Boudreaux continued treatment by Dr. Plauché until 2003. She said he first recommended she see a neurologist for electrical stimulation to see if her radial nerve or any of the other nerves were still working, and to see what nerve | ^function remained. Ms. Boudreaux saw Dr. Michael Fisher, a neurologist, and thereafter sought further treatment on her own.

Dr. Plauché testified that Ms. Bou-dreaux first came to see him in May 2002, complaining of pain in her right shoulder and her right hip. According to the notes, he said, she had a fracture during the surgery and some of the cement extruded through the fracture site. Dr. Plauché felt that Ms. Boudreaux most likely sustained a thermal necrosis to the radial nerve, with subsequent radial nerve palsy. He explained that the surgical cement gets very hot when it goes from a soft state to hard. It came out of a hole in the bone, apparently near where the radial nerve runs around that bone. He concluded that the heat from the cement injured the nerve, which would have had to occur during the surgery. It takes about 10 minutes for the cement to become firm.

Dr. Plauché testified that other causes of a radial nerve palsy would be from the nerve being stretched or moved around the mass created by the cement, or from swelling or external pressure on the nerve. In his opinion, it was because of the cement. For the cement to come out of the bone, there had to be a hole somewhere. He said this is a known complication, especially in rheumatoid patients. It can occur even with the exercise of the greatest care.

Dr. Plauehé did not recommend excision of the cement at that point, because it was a year from the injury. By that point it was stable and hard. He saw no point in taking it out; rather, he felt there probably was more risk with surgery, because scar tissue could fracture the bone and damage the muscle.

Dr. Plauehé testified that if an x-ray had been taken post-operatively after the surgery in August 2001, the cement would have been visible. It would not have made a difference, however, because the damage to the nerve from the heat already taken place. Dr. Plauehé last saw Ms. Bou-dreaux in October 2003.

114Pr. Plauehé testified that usually one would take an x-ray after the surgery. He said it is standard in the recovery room, typically to make sure the ball of the implant is in the socket. He admitted that if the patient is complaining of limited movement of the fingers, there is more reason to do an x-ray.

Dr. Plauehé said that, like Dr. Parnell, he would not have sent Ms. Boudreaux for nerve conduction studies within the first few weeks after surgery. Instead, he would first institute physical therapy. He said conservative treatment is the best course, then nerve conduction tests. Only after that would he discuss surgical decompression, because chiseling out cement during repeat surgery is risky. There is the risk of fracture, plus the risk of further injury to the nerve.

The operating surgeon, Dr. Parnell, testified he was not aware of any bone fracture or extravasation of the cement after the surgery. The only excess cement he could see was at the top and he removed that. He could see only the bone at the top of the arm — the shoulder and about two inches of adjacent bone. He stated he did not take a post-operative x-ray of the shoulder because it was not necessary. He testified that at East Jefferson Hospital the decision whether to do a postoperative x-ray is the surgeon’s choice. He said an x-ray would just show the position of the prosthesis, and the surgeon who placed the prosthesis knows the position without an x-ray.

Dr. Parnell testified that if Ms. Bou-dreaux had returned for the office visits scheduled in late October and/or early November that she missed, he would have referred her to a neurologist for testing. He said it takes a minimum of six weeks after surgery before nerve conduction tests become positive, and it can take up to ten weeks.

|15Pr. Parnell testified that when he viewed the emergency room x-rays at Ms. Boudreaux’s visit on April 30, 2002, he did not see a fracture, but he could see some cement in the anterior. He concluded that cement from the August 15, 2001 surgery had extravasated outside the bony canal. That can happen without any negligence; there are cases in which there was no fracture, but cement had been extruded through the foramen (a hole in the bone through which the blood vessels exit).

Dr. Parnell explained that the radial nerve runs closest to the bone, so it tends to be the nerve most commonly involved by cement extravasation. If the cement contacts the nerve while it is curing, it causes a chemical burn, actually a thermal burn, because the cement gives off heat while it is curing. Nerve fibers are extremely delicate; just a little pressure can cause a malfunction of the nerve. They are probably the most sensitive tissues in the body.

Dr. Parnell said that if he had taken a postoperative x-ray on August 15, 2001, and had seen that cement extravasated outside the bony canal, he would have given it the same conservative treatment. He said you give it time to heal on its own; if it does not, then you perform nerve conduction studies, which determine the further course of treatment. He said you do not go in and strip the cement away from the nerve. To go back in too soon would increase the risk of injury, because of the swelling associated with the surgical procedure. There is a much higher complication rate, he testified, if you try to go back in right away. The treatment is observation and, if there is no improvement, then electromyography and nerve conduction studies about nine or ten weeks post-operatively, and continuation of physical therapy. If there still is no function in the nerve, then you can perform tendon transfers to try to regain function. '

11fiDr. Parnell felt the shoulder replacement was a success, because even the patient admitted she had improved. He also said that the radial nerve sustained thermal injury immediately upon extravasation of the cement, which would have occurred while Ms. Boudreaux was still under anesthesia in the operating room. The outcome would have been the same, even if he had taken a post-operative x-ray.

Eventually, however, after researching specialists on her own, Ms. Boudreaux went to New York City for corrective surgery by Dr. Robert Hotchkiss, an orthopedic surgeon who specializes in corrective surgery. Dr. Hotchkiss attempted to repair the nerve damage and paralysis, but that surgery ultimately was unsuccessful.

Dr. Frank L. Barnes testified as an expert orthopedic surgeon on behalf of the plaintiff. He is an orthopedic surgeon licensed in Texas, with an office in the Houston area. He testified he has performed hemiarthroplasties. He was critical of Dr. Parnell for not taking a postoperative x-ray of the plaintiff within 24 hours of surgery. He testified that x-rays are routine in most orthopedic surgeries so “you can be sure you did what you thought you did,” and that “there are no problems you need to go back and correct.” He said it is mandatory at most hospitals in Houston.

Dr. Barnes opined that what happened with the plaintiff is that when the prosthesis was inserted, the cement broke out through the side of the bone and flowed down the arm almost to the elbow. He said that the nerve injury was caused primarily by the pressure of the cement against the radial nerve, that it happened at the time of surgery, and that the radial nerve was damaged right away. He said if you wait too long to repair it, there is more scarring inside the radial nerve and gradually it will get worse.

117Pr. Barnes said if he had performed the surgery, had taken an x-ray within 24 hours after the surgery, and had seen the extruded cement, initially he would have observed the arm closely to see if there would be recovery. After three to six weeks, he would have obtained electromyo-graphic testing to see if there was any recovery of nerve function. At that point he would have considered re-exploring the nerve to assess its condition and to see if it could be improved.

Dr. Barnes admitted that fracture of the humerus with a prosthesis is a known complication, as is extrusion of the cement outside the bony canal, and that these can happen even with the best of care. He agreed that Dr. Parnell’s original recommendation that the plaintiff undergo shoulder surgery was correct, and he agreed with Dr. Parnell’s surgical technique as described in the post-operative report.

Dr. Barnes opined, however, that after six weeks Dr. Parnell should have re-explored the plaintiffs radial nerve, which most probably would have shown pressure on the nerve from the cement. He said if the excess cement had been removed it would have given the plaintiff a better chance to recover the nerve.

Dr. Barnes admitted that heat from the cement, combined with pressure, could aggravate injury to the nerve. He admitted that heat itself could cause injury that would be instantaneous.

Dr. Donald Faust, a member of the medical review panel, was called by Dr. Parnell to testify as an expert orthopedic surgeon. Dr. Faust stated the panel’s conclusion was that it was an unfortunate outcome, but it was not malpractice by Dr. Parnell. He said the evidence does not support the conclusion that Dr. Parnell |isfailed to meet the applicable standard of care. Dr. Faust further stated he is still of that opinion. He believes the radial nerve palsy was probably a thermal injury due to the leakage of the cement. The bone is porous in everybody, and in rheumatoid arthritis patients it is even more porous. He said that when they put in the cement, it leaked out through the little pores throughout the humerus. He did not think there is anything Dr. Parnell could have done to prevent it. The fact that cement leaked out, he said, does not prove that Dr. Parnell’s care was substandard.

Dr. Faust said it is a known complication, and the radial nerve is most at risk. He testified there is no really good treatment approach to repair the nerve, only tendon transfers if there are muscles available. He did not think the nerve could be fixed.

Dr. Faust stated it is not below the standard of care not to take a postoperative x-ray; that is a call for the surgeon to make. In his opinion, the main reason to take post-surgery x-rays is to use them as teaching tools for surgical residents. Dr. Faust said that even if an x-ray had been done and Dr. Parnell had seen cement extravásate outside the bony canal, his treatment options were zero. It wouldn’t have worked to take the patient back into surgery, which could have caused arm problems. The thermal nerve injury probably occurred in the first 20 minutes to an hour after it was put in. Dr. Faust testified the only thing is to hope it would recover on its own due to a neuropraxia, which is a possibility. Exploring it surgically would jeopardize that route.

Dr. Faust concluded that the plaintiff was an appropriate candidate for shoulder replacement because, due to her rheumatoid arthritis, she likely would have lost functionality of the shoulder in absence of shoulder replacement surgery. He said the best clinical approach for the plaintiff would have been to do nothing, |1flor to undergo tendon transfers. He stated, “If Dr. Parnell had shot the x-ray, I don’t think he should have done anything differently than what he did.”

Dr. Felix Savoie, III, another member of the medical review panel, also was called by the defense to testify as an expert orthopedic surgeon. Dr. Savoie estimated he has performed thousands of shoulder replacement surgeries in his 30 years of practice. He testified that radial neuropa-thy is a known complication, and that neu-ropraxic injury can occur either from retraction during surgery or from a variety of problems, even with the best care and skill by the surgeon.

Dr. Savoie, who teaches at Tulane Medical School, said that at the Tulane hospital they usually take an x-ray when the patient returns for the first post-operative visit. He said the reason, however, is because Tulane is a teaching institution, with residents and fellows in the clinic at all times. The x-rays are a teaching tool. He did not think it was below the standard of care for Dr. Parnell not to take a postoperative x-ray.

Dr. Savoie commented he had reviewed the x-rays from St. Tammany Parish Hospital and he could not see any fracture on them. In the absence of a fracture, the cement had to extravásate through the porous holes in the bones, which are osteo-mylastic due to her rheumatoid arthritis.

Dr. Savoie testified he was unable to say for certain what caused the injury to the plaintiffs radial nerve. It could be a thermal injury, or a neuropraxia caused from having retractors up high during surgery. He said it most likely is a thermal injury because “it just went out and stayed out.” If he had seen a post-operative x-ray of the patient showing the extravasated cement, he would have done nothing except to tell the patient that if she felt a bump in her arm, it was the cement.

DftAccording to Dr. Savoie, the treatment recommendation for radial nerve palsy and extruded cement is to watch the nerve. Usually it will come back within eight to twelve weeks, but it can take up to two years. By eight weeks, if the patient still is not recovering, then you do electrom-yography and a nerve conduction study. Prior to that it is a waste of time. After the electromyography, a neurologist can tell what occurred and the chances of its returning. If it is a thermal injury, it usually is not going to recover.

Dr. Savoie also pointed out that after the corrective surgery by Dr. Hotchkiss, the plaintiff was “in a mess.” Prior to Dr. Hotchkiss’s surgery, she had a good result from Dr. Parnell’s surgery; if she had impaired function of the radial nerve, she either could have done nothing or had tendon transfers. Dr. Savoie said it would have been below the standard of care for Dr. Parnell to take the plaintiff back into surgery to scrape out the cement. Dr. Savoie disagreed with Dr. Barnes’s conclusion that Dr. Parnell deviated below the standard of care by not taking post-operative x-rays.

LAW AND ANALYSIS

La. R.S. 9:2794 sets out the plaintiffs burden of proof in a malpractice action against a physician, as follows in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 87:1261 et seq., ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
12i(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(8) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La. R.S. 40:1299.40 of Louisiana’s Uniform Consent Law provides in pertinent part:

A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means ..., 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 evidenced by a signature, marking, or affirmative action through electronic means, 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.

In Brandt v. Engle, 00-3416, p. 7, n. 1 (La.6/29/01), 791 So.2d 614, 618, our supreme court stated,

The jurisprudence has enunciated the following four-pronged test that a plaintiff asserting an informed consent claim must satisfy:
1. The existence of a material risk unknown to the patient;
2. A failure to disclose a risk on the part of the physician;
| ¾⅞3. That the disclosure of the risk would have led a reasonable patient in the patient’s position to reject the medical procedure or choose another course of treatment; and
4. Injury.

The fact there is an injury during or following medical care or treatment is not by itself an indication of substandard care that either the physician or hospital provided. Campo v. Correa, 2001-2707, pp. 14-15 (La.6/21/02), 828 So.2d 502, 512. The mere fact of an injury or accident does not raise a presumption or inference of negligence on the part of the healthcare provider. Galloway v. Baton Rouge General Hospital, 602 So.2d 1003, 1008 (La.1992); La. R.S. 9:2794(C).

“The plaintiff must establish ... a causal connection between the physician’s alleged negligence and the plaintiffs injuries resulting therefrom.” Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228,1233.

In a medical malpractice action, the plaintiff must show that as a result of the defendant’s negligence he suffered injuries that would not otherwise have occurred. Plaintiff need not show that defendant’s conduct was the only cause of the harm nor must he negate all other possibilities. Rather, he must show by a preponderance of the evidence, or more probably than not, that he suffered the injury because of defendant’s conduct. Where different medical procedures or different health care providers may have concurred to create or worsen the harm, a tortfeasor is responsible not only for the injuries directly resulting from his substandard conduct but for subsequent treatment by health care providers who seek to resolve the original harm. This is so whether or not the subsequent treatment is rendered negligently. However, if the subsequent treatment is deemed negligent, then the original physician and the subsequent ones are solidarity liable for the total harm. Thus, the risk of further injury from treatment of health care providers whose services are made necessary by the original negligent act is within the scope of the risk foreseeable by the original tortfeasor.

| ¡¡aMaxwell v. Soileau, 561 So.2d 1378, 1387 (La.App. 2 Cir.1990), writ denied, 567 So.2d 1123 (La.1990) and 567 So.2d 1124 (La.1990).

A reviewing court may not set aside a district court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. Breach of duty and cause in fact are factual questions to be determined by the factfinder. [Citations omitted.]

Linnear v. CenterPoint Energy Entex/Reliant Energy, 2006-3030, p. 11 (La.9/5/07), 966 So.2d 36, 44.

Applying these principles to the facts before us, we find no manifest error in the trial court’s determination that the plaintiff failed to carry her burden of proof by a preponderance of the evidence, either as to causation of the injury itself or as to failure to give informed consent.

The district court’s written reasons for judgment set forth fully the court’s analysis of the expert testimony. There is no basis on which to find the court was clearly wrong in determining there was no evidence of any breach of the standard of care by Dr. Parnell.

Similarly, we find no error in the district court’s determination that the plaintiff failed to prove that Dr. Parnell did not obtain her informed consent. The plaintiff admitted she had not read any of the forms that she signed, and she did not establish there was any misrepresentation of material facts.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of appeal are assessed against the plaintiff-appellant.

AFFIRMED

      .In support of their conclusion, the panel gave the following reasons:
      1. We acknowledge that this is an unfortunate outcome for this patient.
      2. The patient was informed of the risks of the surgery in the informed consent which she signed on 8-13-01. The stated risks included "infection, neurologic injury, vascular injury, ligament or tendon injury, fracture of the bone.”
      3. Cement extrusion is a known complication in this type of surgery, as is intraop-erative or perioperative fracture, both of which occurred in this case.
      4. While it is common practice to obtain x-rays postoperatively, the fact that Dr. Parnell did not do so would not have changed the medical management of this case, and this omission was not the cause of the patient’s difficulties.

      . Neuropraxia is “a condition in which a nerve remains in place after a severe injury although it no longer transmits impulses." Mosby’s Medical Dictionary (8th edition, 2009), available at http://medical-dictionary. thefreedictionary.com/neuropraxia.

      . Extravasation is “a discharge or escape, as of blood, from a vessel into the tissues; blood or other substance so discharged.” Dorland's Medical Dictionary for Health Consumers (2007), available at http://medicaldictionary. thefreedictionary.com/extravasation.

      . La. R.S. 40:1299.47(H) provides,
      Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify....

      . We note this physician’s name is spelled in the record as "Sadoie,” but we have changed the "d” to a "v" based on reliable information that the correct spelling is "Savoie.”


source: Caselaw Access Project

license: Public Domain

text:
    Moses Junior WILLIAMS v. NEXSTAR BROADCASTING, INC., d/b/a KTVE Channel 10 and myark-lamiss.com, Griffin Scott, Jack Bog-gan, and Tallulah Publishing d/b/a the Madison Journal.
    No. 11-CA-887.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.

      Michael L. DuBos, K. Lamar Walters, III, Attorneys at Law, Monroe, LA for Plaintiff/Appellant, Moses Junior Williams.
    Mary Ellen Roy, Dan Zimmerman, Attorneys at Law, New Orleans, LA, for Defendants/Appellees, Nexstar Broadcasting, Inc. d/b/a Ktve Channel 10 and myarklamiss.com, and Griffin Scott.
    Arthur L. Stewart, Attorney at Law, Monroe, LA, for Defendants/Appellees, Tallulah Publishing, Inc., d/b/a Madison Journal and Jack Boggan, in his Capacity as an Employee of Tallulah Publishing, Inc., d/b/a Madison Journal.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|2This appeal arises in a defamation suit. The plaintiff appeals a judgment that granted the defendants’ exceptions of no cause of action and prescription, granted a special motion to strike the petition, and awarded attorney’s fees to the defendants on the special motion to strike. We amend and affirm.

FACTS

Moses Junior Williams was the President and Chief Executive Officer of the Northeast Louisiana Community Development Corporation (hereafter “CDC”) from the CDC’s creation in 1995 until his resignation in 2008. CDC is a nonprofit corporation that served as the lead entity for the federal Empowerment Zone and Enterprise Community process in north Louisiana, particularly in Madison Parish.

On November 18, 2009, Williams filed suit against Nexstar Broadcasting, Inc. d/b/a KTVE Channel 10 and myarklam-iss.com, Chad Sliger a/li/a Griffin Scott (hereafter “Scott”), Jack Boggan (hereafter “Boggan”), and Tallulah Publishing, Inc. d/b/a The Madison Journal (“Tallu-lah”). Williams alleged that Scott was an agent and/or employee of Nexstar acting within the course and scope of his agency and/or employment, thereby rendering Nexstar liable for his acts and omissions. USimilarly, Williams alleged that Boggan was an agent and/or employee of Tallulah, acting within the course and scope of his agency and/or employment and rendering Tallulah liable for his acts and omissions.

Williams alleged that commencing on November 13, 2008 and continuing through November 25, 2008, Griffin Scott and other Nexstar agents and employees broadcast on KTVE Channel 10 a series of stories titled “Missing Millions in Madison Parish,” in which Scott and Nexstar made “false and defamatory statements, comments and innuendo to attack and harm the reputation and character of Plaintiff, Moses Junior Williams.” According to the petition, Jack Boggan appeared in these reports and he also made and published defamatory statements, comments and innuendo regarding Williams.

Williams stated that throughout the series, the defendants stated and implied that the CDC and Williams had received almost one hundred million dollars in taxpayer money, but that Williams had acted illegally, unprofessionally or incompetently as chief executive officer of CDC.

Williams alleged that from the date of their initial broadcast until the present date, Nexstar has continued to publish the series on its website, myarklamiss.com, and that Boggan and Tallulah continuously ran articles in the Madison Journal that similarly attacked Williams’ reputation and character. Williams alleged the defendants’ statements were made with actual malice, with knowledge of their falsity, or with reckless disregard for the truth.

The defendants all filed exceptions of no cause of action and prescription, as well as a special motion to strike pursuant to La. C.C.P. art. 971, seeking to have the entire petition stricken.

|/The trial court granted the exceptions and the special motion to strike.

With respect to the exception of no cause of action, the court found, “The petition fails to state a cause of action because it fails to allege with reasonable specificity the allegedly defamatory statements.... Plaintiffs allegations are the types of con-clusory assertions, unsupported by specific defamatory statements, that do not state a cause of action under Louisiana law.” In addition the court noted that the petition fails to allege facts which support that the alleged defamation stemmed from allegations that were false and that they were published with malice.

The court stated,
The articles of Tallulah Publishing and the newscasts of Nexstar are based on actions of the CDC or an audit conducted by the Office of the Inspector General, United States Department of Agriculture. The publications are a matter of public concern, are editorial in nature, and are constitutionally protected statements of opinion.

With respect to the exception of prescription, the court held that because the petition was not filed until November 18, 2009, any alleged defamatory statements published or broadcast by the defendants prior to November 18, 2008, are prescribed.

With respect to the Special Motion to Strike, the court granted the motion and made the following findings:

The subject articles of Tallulah Publishing and the broadcasts of Nexstar are clearly relating to free speech and a matter of public concern, as they directly relate to the USDA audit of the CDC. The CDC and its activities are a matter of public concern, and Moses Junior Williams, as its President and CEO, is a limited purpose public figure relative to matters pertaining to the CDC. The burden then shifts to the Plaintiff to establish a probability of success on the claim.... Plaintiff has a slim probability of success on his, claim. In essence, Defendants’ articles and publications are constitutionally protected free speech.

| ^Because Article 971 provides that the prevailing party shall be awarded reasonable attorney’s fees and costs, the court awarded attorneys’ fees of $3,000.00 to counsel for each group of defendants.

The plaintiff appeals, raising five assignments of error.

ASSIGNMENTS NOS. 1 AND 2: NO CAUSE OF ACTION

In the first and second assignments, the plaintiff asserts the district court erred in sustaining defendants’ exceptions of no cause of action, and in failing to allow amendment of the petition after sustaining the exceptions of no cause of action.

The plaintiff argues his petition contains everything necessary to state a case cause of action in defamation: defamatory words, publication, actual malice or reckless disregard for the truth, falsity, and injury. Alternatively, he argues the court should have allowed him to amend his petition to state a cause of action.

[A]n exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. In reviewing a district court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.... If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. [Citations omitted.]

| Badeaux v. Sw. Computer Bureau, Inc., 2005-0612, p. 7 (La.3/17/06), 929 So.2d 1211, 1217.

Defamation is a tort involving an invasion of a person’s interest in his reputation and good name. Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139. Generally, to prevail in a defamation action, plaintiff must prove: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Costello, 03-1146 at p. 12, 864 So.2d at 139. In other words, “plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.” Sassone v. Elder, 626 So.2d 345, 350 (La.1993). If any one of the required elements is not sufficiently proven, the cause of action fails. Costello, 03-1146 at p. 12, 864 So.2d at 140.

A petition must contain “a short, clear, and concise statement of ... the material facts of, the transaction or occurrence that is the subject matter of the litigation.... ” La. C.C.P. art. 891(A). To plead “material facts,” the petitioner must allege more than mixed questions of law and fact, such as that the defendant breached the contract or acted unreasonably. Frank L. Maraist & Harry T. Lemmon, 1 Louisiana Civil Law Treatise: Civil Procedure § 6.3, at 102 (1999). Rather, “[t]he Code requires the pleader to state what act or omission he or she will establish at trial.” Id.

“Thus, to plead material facts, a petitioner alleging a cause of action for defamation must set forth in the petition with reasonable specificity the defamatory statements allegedly published by the defendant. ... It is not necessary for a plaintiff to state verbatim the words on which he bases his cause of action, but he [ 7must allege a state of facts or condition of things which would show fault under article 2315.” Badeaux, 2005-0612 at p. 10, 929 So.2d at 1218.

The district court correctly found that the plaintiff did not set forth specific defamatory statements to support his cause of action. Rather, the petition merely alleges that the defendants “made and published false and defamatory statements, comments and innuendo to attack and harm the reputation and character of the Plaintiff,” and that the news reports “state and imply ... that Plaintiff, Moses Junior Williams, had acted illegally, unprofessionally or incompetently with respect to his role as the Chief Executive Officer of the CDC.” These are conclusory allegations; without support by specific defamatory statements, they cannot state a cause of action.

The district court also correctly found that the petition failed to allege facts to support the element of actual malice. The petition alleged that the statements made “were false and made with actual malice ... [and] with knowledge of their falsity or reckless disregard for the truth.” That allegation merely states conclusions, not facts.

Further, where “public affairs are concerned, there can be no libel by innuendo.” Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, 717, citing Schaefer v. Lynch, 406 So.2d 185, 188 (La.1981). Thus, in Schaefer, a newspaper story that “conveyed the impression that” the plaintiff had misused state funds for his personal benefit was not actionable.

Having determined that at least one of the elements required to state a cause of action in defamation was missing from the petition here, it is unnecessary for us to address the other elements. The trial court was correct in finding that the petition failed to state a cause of action.

lsThe next issue is whether the plaintiff should have been allowed to amend. Pursuant to La. C.C.P. art. 932(A), the plaintiff should have been allowed to amend. In this case, however, the district court determined amendment would be futile. In order to rule- on the Special Motion to Strike, the court had reviewed all the statements made in the news reports. The court found, correctly, that the articles of Tallulah and the broadcasts of Nexstar are clearly related to free speech and a matter of public concern, because they directly relate to the USDA audit of the CDC, which is a matter of public concern. Hence, the court concluded that defendants’ articles and publications are constitutionally protected free speech.

Because the district court reviewed all of the statements in the news reports and found they were not defamatory, or were constitutionally protected, allowing the plaintiff to amend his petition would be useless. Accordingly, the district court did not err in dismissing the petition with prejudice.

ASSIGNMENT NO. 3: PRESCRIPTION

In the third assignment, the plaintiff asserts the district court erred in sustaining the defendants’ exception of prescription.

Delictual actions, including defamation, are subject to liberative prescription of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. The plaintiff acknowledges that his defamation claim is subject to a one-year prescriptive period and that the petition was filed more than one year after November 12, 2008 broadcast and web post. Hence, a claim for any statement in that broadcast is prescribed.

We do find error in the general sustaining of the exception of prescription as set forth in the judgment. The district court decreed that there be judgment granting the exceptions of no cause of action and prescription. In the Reasons for 19Judgment, however, the district court found only that “any alleged defamatory statements published or broadcast by the defendants prior to November 18, 2008, are prescribed.” Thus, the language in the judgment should have limited the granting of the exception of prescribed to “statements published or broadcast by the defendants prior to November 18, 2008.” We amend the judgment accordingly.

ASSIGNMENT NO. 4: MOTION TO STRIKE

In the fourth assignment, the plaintiff asserts the district court erred in granting defendants’ Special Motion to Strike. He argues that he has shown a “probability of success” for his defamation claims, and that the defendants’ statements were held out to the public as the truth, not merely opinions.

La. C.C.P. art. 971 provides as follows, in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs....

The special motion to strike is designed to screen claims that lack merit and that would chill public participation in matters of public interest. “The intent of this statute is to encourage continued participation in matters of public significance 1 inand to prevent this participation from being chilled through an abuse of judicial process.” Lee v. Pennington, 2002-0381, p. 4 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041, writ denied, 2002-2790 (La.1/24/03), 886 So.2d 52.

The trial court found that the defendants* articles and broadcasts clearly related to free speech, that the CDC and its activities are a matter of public concern, and that the plaintiff as president and CEO of the CDC was a limited-purpose public figure. The court found further that the defendants’ articles and broadcasts are constitutionally-protected free speech. Hence, the court concluded that the plaintiff has a slim probability of success on his claim, such that the special motion to strike should be granted.

We find no error in the trial court’s determination. The court properly granted the special motion to strike.

ASSIGNMENT NO. 5: ATTORNEY’S FEES

In the fifth assignment, the plaintiff asserts the district court erred in awarding attorney’s fees to the defendants. When a special motion to strike is granted, the court is mandated by -La. C.C.P. art. 971 to award attorney’s fees. Delta Chem. Corp. v. Lynch, 2007-0431, p. 13 (La.App. 4 Cir. 2/27/08), 979 So.2d 579, 588, writ denied, 2008-0683 (La.5/30/08), 983 So.2d 898 and 2008-0761 (La.5/30/08), 983 So.2d 904. The court is “allowed, and even required, to determine if the amount awarded is reasonable.”

A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant.... The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an ap-pellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court....
B. A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.

The district court awarded $3,000.00 to defense counsel for bringing the Special Motion to Strike. On appeal defendants have requested that we award them attorney’s fees for this appeal.

Attorney’s fees on appeal usually can be awarded only if the party seeking them is entitled to them by law, and has either appealed or answered the appeal. \nSee La. C.C.P. art. 2133. In this case, because the defendants are entitled to and were awarded attorney’s fees for their counsels’ work in the district court as related to the Special Motion to Strike, pursuant to La. C.C.P. art. 971, we shall award an increase in the attorney’s fees for this appeal. See also, Gandy v. United Services Auto. Ass’n, 97-1095 (La.App. 5 Cir. 10/14/98), 721 So.2d 34, writ denied, 98-2836 (La.1/15/99), 736 So.2d 208.

Because the attorney’s fees relate only to the portion of the case arising out of the claims under Article 971, we limit the fee for this appeal to $500.00 to each set of counsel for the defendants.

DECREE

For the foregoing reasons, the judgment is amended to provide that the exception of prescription is granted as to statements published or broadcast by the defendants prior to November 18, 2008. The judgment is further amended to award additional attorney’s fees in the amount of $500.00 for this appeal to Mary Ellen Roy, Dan Zimmerman, and Phelps Dunbar LLP, counsel for Nexstar Broadcasting, Inc. d/b/a KTVE Channel 10 and myark-lamiss.com and Griffin Scott; and attorney’s fees in the amount of $500.00 for this appeal to Arthur L. Stewart, counsel for Tallulah Publishing, Inc. d/b/a The Madison Journal and Jack Boggan.

112As amended, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Moses Junior Williams.

AMENDED AND AFFIRMED

      . The case was filed and tried in Madison Parish, which is within the jurisdiction of the Court of Appeal, Second Circuit, State of Louisiana. One of the parties is related to a judge on the Second Circuit, however, so all of the Second Circuit judges recused themselves. Accordingly, the Supreme Court of Louisiana transferred the case to this Court on August 31, 2011.

      . Article 971 provides a mechanism for dismissal of a claim that stems from any act in furtherance of the defendant's right of petition or free speech under either the state or federal constitution in connection with a public issue.

      . La.Code Civ. Proc. Ann. art. 2133 provides as follows in pertinent part:


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Gerald A. WILLIAMS.
    No. 2011-KA-0954.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for The State/Appellee.

      Christopher A. Aberie, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge Rosemary LEDET).
   ROSEMARY LEDET, Judge.

|,In this criminal case, the defendant, Gerald Williams, appeals his second degree murder conviction and his life sentence. On appeal, Mr. Williams assigns two errors relating to the trial court’s denial of his motion for a mistrial. Because we find his assignments of error unpersuasive and find after a review of the entire record no errors patent, we affirm.

STATEMENT OF THE CASE

In October 2008, Mr. Williams was charged by indictment with second degree murder, a violation of La. R.S. 14:30.1; he pled not guilty. In July 2009, the trial court denied the defense’s motion to suppress identification. In February 2010, a jury trial was held. The jury found Mr. Williams guilty as charged. In March 2010, Mr. Williams filed a motion for a new trial. In June 2010, the trial court denied his motion for a new trial. From this ruling, Mr. Williams filed applications for supervisory writ with both this court and the Louisiana Supreme Court, which were denied. In January 2011, the trial court sentenced Mr. Williams |2to life in prison at hard labor without benefit of probation, parole, or suspension of sentence. Also in January 2011, Mr. Williams filed a motion for appeal, a motion to reconsider sentence, a motion for a post-verdict judgment of acquittal, and a motion for a new trial. The trial court granted the motion for appeal, but denied all his other motions. This appeal followed.

STATEMENT OF THE FACTS

This case arises out of a homicide by shooting that occurred on June 25, 2008, at a residence located on 6316 North Rampart Street in New Orleans. The residence was owned by Michael Miller. At the time of the homicide, the following four people were residing in the residence: Mr. Miller; Mr. Miller’s girlfriend, Nadah Raymond; the murder victim, Victor Russell; and Mr. Russell’s girlfriend, CC McCollum (whose nick name is “JuC”). The victim’s sister, Jonell Chaneau, testified that the victim always struggled with addiction. She indicated that the victim had been living with JuC and Mr. Miller on Rampart Street, but she did not know Mr. Miler’s girlfriend, Ms. Raymond. Ms. Chaneau also indicated that she had heard that JuC was married. As noted below, Ms. Raymond testified that JuC was married to the defendant, Mr. Williams (whose nick name is “Gee”).

Michael Miller testified that he and Ms. Raymond, whom he knew for two months, were living in his house on the date of the homicide. He also was allowing Mr. Russell, the victim, and JuC to live in his house. According to Mr. Miller, Mr. Russell and JuC stayed at the house some nights, not all nights; and Mr. Russell and JuC were using drugs together. Mr. Miller did not know Mr. Williams (Gee); | (¡however, he acknowledged that he had seen Gee twice. One night when Mr. Miller arrived home from work, Gee pulled up and asked to speak to JuC. Mr. Miller called JuC, and she went out to talk to Gee.

On the day of the homicide, Mr. Miller arrived home after stopping for food. Ms. Raymond was on the corner of St. Maurice and Rampart screaming hysterically about gunshots; she could not tell him what had happened. A lady named Lela told him that Mr. Russell had been shot. When Mr. Miller went inside his house, he found Mr. Russell partially lying on his bed; his feet were on the floor. Mr. Miller exited the house and called 911. He admitted that he had an open criminal ease, which was the result of a recent arrest.

Nadah Raymond testified that she had problems with drugs, and her drug of choice was crack cocaine. She admitted that she had a conviction for possession of crack cocaine in the late 1990’s. She indicated that in June 2008 she was living in Mr. Miller’s house on North Rampart with Mr. Williams, Mr. Russell, and JuC. They were all using drugs in the house. She testified that Gee (Mr. Williams) and JuC were married. About a month or two before the shooting, Gee starting showing up at the house. JuC talked to him and braided his hair.

On the date of the homicide, Ms. Raymond did not recall smoking crack, but she had a couple of beers. At about 1:00 a.m. (shortly after midnight), she was walking to the house to go to the bathroom when Gee pulled up in his car. Gee called to her, and she walked over to his ear. He asked her if JuC was inside. She noted that he had a four door, black car and that he was driving on Tricou Street sheading toward St. Claude Avenue. She did not recall whether he was the driver or the passenger, and she did not recall what she told the police officers. She recalled that another person was in the car with Gee, but she did not get a good look at the other person. She also recalled that Gee was wearing red and white tennis shoes, khaki pants, and a black-hooded sweatshirt. The hood was off because she could see his braids. After she spoke to Gee, he drove off.

Ms. Raymond testified that after Gee drove off she ran inside to use the bathroom; it was that time of the month. (She was on her menstrual cycle). As she went up the steps of the house, she saw Mr. Russell and Linda exit Derrick’s white truck. (Derrick and Linda apparently had gone out with Mr. Russell.) Mr. Russell entered the house. From inside the bathroom Ms. Raymond asked Mr. Russell to lock the door. He replied that he was not going to lock it because Linda had not yet entered the house. Because there was no light in the bathroom, Ms. Raymond cracked the door to let some light inside. Ms. Raymond testified that she heard one shot, and she jumped up. Ms. Raymond further testified that when she ran out the bathroom door she saw “somebody standing over him [Mr. Russell] with a black hood and some khaki pants.” She recognized both the person’s voice and the person’s clothes. The person (the shooter) was wearing the clothes that Gee had been wearing in his car earlier. The shooter had the hood up on his head, and he was wearing “red tennis on the back.” She indicated that it had been no more than ten or fifteen minutes since she had seen Gee in those same clothes in his car. Ms. Raymond stated that she recognized the shooter’s voice as Gee’s voice because she | ahad just talked to him. She testified that Gee said to Mr. Russell (she assumed it was Mr. Russell): “You are going to stop playing with her, stop doing that to her.” Gee was not speaking to her; she was running out the door. She did not know whether Gee saw her exiting the house. She heard additional shots, but she did not know how many shots in total were fired.

When Ms. Raymond was outside the house, she ran to the corner where she saw Linda walking toward St. Claude Avenue. She also saw Mr. Miller walking up Rampart Street with a bicycle. Ms. Raymond told Mr. Miller that she had heard gunshots in the house. He ran inside the house and called 911. Ms. Raymond had already called 911 from a neighbor’s house. She testified that witnessing the murder had impacted her and that she no longer used drugs.

Ms. Raymond was able to give the officers Gee’s cell phone number. She explained that she had written the number on a blank page in the back of her Bible. She identified the photographic lineup that she signed and dated at 9:80 a.m. on June 25, 2008, the date of the homicide, identifying Gee (Mr. Williams) as the shooter. She also identified Mr. Williams in court. She had no doubt that the man she saw in the car (Gee) was the man she saw standing over Mr. Russell.

Ic,On the day of the homicide, a 911 call was received at 3 a.m. reporting the incident. The first call indicated that a man had been shot; the call back indicated that a man had been shot in the head outside that location. The NOPD Homicide unit was notified.

Homicide Detective Regina Williams, who was the lead detective on the case, testified that she went to the crime scene — Mr. Miller’s house on North Rampart Street. She observed that the house appeared to be under renovation. When she entered a bedroom, she observed the victim’s body partially on the floor near the bed. She also observed a blood trail leading to a bathroom. She interviewed Mr. Miller and Ms. Raymond; she was unable to interview JuC because she was deceased.

Ms. Raymond provided Detective Williams with a clothing description of the shooter; she described the shooter as wearing a black hooded sweatshirt, khaki pants, and red and white tennis shoes. Detective Williams never obtained a search warrant to look for that clothing at Mr. Williams’s residence because she unable to develop a permanent address for him. Ms. Raymond also provided Detective Williams with Mr. Williams’ (Gee’s) cell phone number. Another detective confirmed that Mr. Williams was the cellular subscriber’s for that number. Detective Williams obtained a photograph of Mr. Williams and compiled a 17photographic lineup. Ms. Raymond, who did not appear to be under the influence of drugs or alcohol, picked out Mr. Williams’s photograph as the shooter and signed the back after dating it. Detective Williams then obtained an arrest warrant for Mr. Williams on a second degree murder charge. Mr. Williams turned himself in.

Dr. Richard Tracey, who performed the autopsy on the victim (Mr. Russell), testified that the toxicology report indicated the presence of cocaine and opium products. Dr. Tracey identified his diagram of the tracks of seven bullets that passed through Mr. Russell’s body. Dr. Tracey stated that the two wounds through the victim’s head were instantaneously fatal; he would have died within minutes after the chest wound. He found no powder burns, which indicated that the shooter was at least eighteen inches away from the victim; he explained that “[t]o leave powder or gun smoke deposits [the shooter] would have to be closer than 18 inches to the skin.”

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENTS OF ERROR NUMBER 1 AND 2

[sMr. Williams contends that the assistant district attorney during his opening statement made an improper reference to “other crimes” evidence and that the trial court erred in denying him a mandatory mistrial pursuant to La.C.Cr.P. art. 770. In the alternative, he contends that the trial court erred in denying him a discretionary mistrial pursuant to La.C.Cr.P. art. 771(1) because the assistant district attorney’s remark was prejudicial.

The assistant district attorney’s allegedly improper reference during his opening statement that prompted the motion for a mistrial was that:

“You will hear from Michael Miller who will tell you he was around the house. You will hear from Nadah, Michael’s girlfriend, who will tell you that he was in and around the house. You are not going to hear from JuC. JuC was murdered within the last six months.”

|aAt that point, defense counsel moved a mistrial, arguing: “It’s improper bringing that into a trial, Judge, the statements of other alleged crimes. And [sic] this is a murder trial.” The trial court overruled the objection and denied Mr. Williams’ motion for a mistrial.

This court summarized the governing principles applicable to the issue presented in this case in State v. Lacoste, 04-1625, pp. 10-11 (La.App. 4 Cir. 2/16/05) 896 So.2d 1180, 1186-87, as follows:

A mistrial is warranted under La. C.Cr.P. art. 770 when certain remarks are considered so prejudicial and potentially damaging to a defendant’s rights that even a jury admonition cannot provide a cure. State v. Edwards, 97-1797, pp. 19-20 (La.7/2/99), 750 So.2d 893, 906 (citing State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94). Potentially damaging remarks include direct or indirect references to another crime committed or alleged to have been committed by the defendant, unless that evidence is otherwise admissible. La.C.Cr.P. art. 770(2). The comment must be within earshot of the jury and must be made by a judge, district attorney, or other court official. Id. Comments must be viewed in light of the context in which they are made, and the comment must unmistakably point to evidence of another crime. Edwards, 97-1797 at p. 20, 750 So.2d at 906. In addition, the imputation must unambiguously point to the defendant, and the defendant bears the burden of proving that a mistrial is warranted. Id. If the elements of Article 770 have not been satisfied, the decision on the motion for mistrial is governed by La. C.Cr.P. art. 771, and whether a mistrial is warranted under the circumstances is within the sound discretion of the trial judge. Id.

Id.

hnAIthough La.C.Cr.P. art. 770 is couched in mandatory terms (providing that a mistrial “shall” be ordered), the jurisprudence has held that the admission of other crimes evidence is subject to harmless error analysis. State v. Johnson, 94-1379, pp. 16-17 (La.l 1/27/95), 664 So.2d 94, 101-02. As this court has noted, “[pjrosecutorial remarks or comments which fall outside the scope of proper argument are harmless unless the reviewing court is thoroughly convinced that the remarks inflamed the jury and contributed to the verdict.” State v. Ward, 94-0490, p. 17 (La.App. 4 Cir. 2/29/96), 670 So.2d 562, 570(eiting State v. Byrne, 483 So.2d 564 (La.1986); State v. Jarman, 445 So.2d 1184 (La.1984); State v. Williams, 575 So.2d 452 (La.App. 4th Cir.1991)).

In this case, we find, as the State contends, that the prosecutor’s references to the murder of JuC within six months before trial was not an unmistakable and unambiguous reference to another crime committed by Mr. Williams. Indeed, Mr. Williams concedes that the prosecutor was not directly accusing him of committing murdering JuC. Mr. Williams nonetheless argues that the State unmistakably implied that he murdered JuC out of jealousy while simultaneously eliminating a witness against him. In support of his contention that the prosecutor’s remark was an improper reference to another crime warranting a mistrial, Mr. William cites Ward, supra.

In the Ward case, this Court upheld the trial court’s decision denying a motion for a mistrial under La.C.Cr.P. arts. 770 and 771. Mr. Ward, one of the female co-defendants who was convicted of purse snatching, appealed arguing that h i the trial court erred by denying her motion for mistrial based on the prosecutor’s improper reference to another crime allegedly committed by her and the co-defendant. The victim’s husband, Mr. Lionel Augustine, identified the co-defendants as the women who accosted his wife outside their home and wrestled her purse from her. At the time of trial, Mr. Augustine was in the hospital and thus did not testify. During his rebuttal argument, the prosecutor stated:

“Look at poor Mr. Lionel Augustine. He makes an identification with Sergeant Taylor two weeks after the incident. He says, Yeah; that’s her. The hair looks right. Yeah; I saw her face, things like that, [sic] Six months later, we do motion hearings in his house. And his health has deteriorated. And his memory has faded. And he said on the tape: I can’t remember. I can’t remember. I know the hair. The hair looked right. Yeah; I signed the back of the photo. Nobody forced me to sign the back of the photo. Nobody pointed out who to sign behind. But I can’t remember today. And where is he today? Is he in court? Did he come in and testify? No. he’s in the hospital. Congratulations, ladies.”

Ward, 94-0490 at pp. 14-15, 670 So.2d at 569. In support of her motion for mistrial, Ms. Ward argued that the prosecutor improperly referred to the alleged commission of another crime of violence against Mr. Augustine — physically injuring him and causing his hospitalization so that he could not testify at trial. The trial court denied the motion for mistrial.

Affirming, this court found the trial court did not abuse its discretion in denying Mr. Ward’s motion for a mistrial under both La.C.Cr.P. arts. 770 and 771. As to Article 770, we reasoned that “[although the prosecutor may have exceeded the proper scope of rebuttal argument, his comment cannot reasonably be construed under the circumstances of this case as a reference, either direct or indirect, to the alleged commission of another offense.” Ward, 94-0490 at p. 16,112670 So.2d at 570.

As to Article 771, we found that Ms. Ward failed to show any prejudice and that “the prosecutor’s remark did not measurably jeopardize the fairness of the defendant’s trial.” Ward, 94-0490 at p. 17, 670 So.2d 570.

In finding Mr. Ward failed to establish prejudice, we noted that the jury was aware of Mr. Augustine’s poor health and that his wife (the purse snatching victim) testified that he had undergone a hip operation and was still at Touro Hospital. We further noted that Ms. Ward’s participation in the purse snatching offenses was established beyond a reasonable doubt through eyewitness testimony. The victim (Mrs. Augustine) identified Ms. Ward in a photographic lineup and at trial as the woman who took her purse. We thus held that “[i]n this light, the prosecutor’s comment did not substantially prejudice the defendant or contribute to the jury’s verdict of guilty on each of the three counts.” Ward, 94-0490, 670 So.2d at 571.

Mr. Williams argues that the “mitigating circumstances” this Court relied upon in Ward are absent here. He notes that the comment in Ward regarding the witness (Mr. Augustine) being in the hospital was held not to prejudice the defendant or contribute to the jury’s verdict of guilt because the State’s evidence was fairly overwhelming. In contrast, Mr. Williams contends that the State’s evidence against him was not fairly overwhelming. He points out that the State’s evidence consisted of the testimony of only one witness, Ms. Raymond. He further points out that Ms. Raymond acknowledged that she used crack cocaine, that she had consumed alcohol on the day of the homicide, and that she did not see the shooter’s face. Mr. Williams still further points out that he was on trial for murder, 11sand the prosecutor’s reference “improperly suggested” that he also murdered JuC to punish her for living with Mr. Russell and to prevent her from testifying against him at trial. He contends that the jury was never provided a reason to question “the State’s clear implication of Mr. Williams’s [sic] involvement in JuC’s murder.”

Mr. Williams’ reliance on Ward, supra, is misplaced. In this case, JuC, as the State points out, was not at the residence when the shooting occurred; hence, she was not a witness who beneficially could have testified against Mr. Williams. Moreover, each ease must be considered on its individual facts and circumstances; and the prosecutor’s remark “must be viewed in light of the context in which they are made.” Lacoste, supra. The prosecutor in his opening statement was not accusing Mr. Williams of JuC’s murder; rather, the prosecutor was setting out the factual background of the case and explaining why JuC would not be testifying. The prosecutor’s remark, as stated earlier, was not an unambiguous reference to another crime committed by Mr. Williams. Thus, the trial court was not required to grant a mandatory mistrial under La. C.Cr.P. art. 770.

Nor did the prosecutor’s remark measurably jeopardize the fairness of Mr. Williams’ trial so as to warrant granting a discretionary mistrial under La.C.Cr.P. art. 771(1). See Ward, 94-0490 at p. 17, 670 So.2d at 570. Mr. Williams did not request an admonition, and the trial court did not give one.

Even assuming, arguendo, that the trial court erred by denying a mistrial, the error was harmless. Mr. Williams has not shown that the prosecutor’s reference to JuC’s murder inflamed the jury and contributed to the verdict. Moreover, the J^record reflects there was sufficient evidence to convict Mr. Williams of Mr. Russell’s murder.

Although Ms. Raymond acknowledged a prior drug problem, she testified that on the date of the homicide she drank alcohol but did not use drugs. Ms. Raymond heard a gunshot when she was in the bathroom; Mr. Russell had entered the house shortly before she heard the gunshot. She immediately ran out the bathroom. As she was exiting the house, she saw the back of the shooter. She did not see the shooter’s face. The shooter was wearing khaki pants, a black hooded sweatshirt, and red and white tennis shoes; Gee was wearing the same clothes less than ten or fifteen minutes before when she saw him in his car outside the house. She recognized Gee’s voice when she heard him say to the victim: “You are going to stop playing with her, stop doing that to her.” Ms. Raymond was certain that it was Gee who shot Mr. Russell. Ms. Raymond’s testimony, which the jury heard, was sufficient to prove beyond a reasonable doubt that Mr. Williams shot Mr. Russell.

The trial court did not abuse its discretion in denying Mr. Williams’ motion for mistrial under La.C.Cr.P. art. 770 or 771. Neither of the assignments of error have merit.

DECREE

For the forgoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . State v. Williams, 10-1108 (La.App. 4 Cir. 8/10/10) (unpub.); and State v. Williams, 10-2066 (La.l 1/12/10), 49 So.3d 894.

      .On redirect examination, Ms. Raymond explained that at the time of the homicide she was wearing Mr. Miller’s polo shirt that was several sizes too big for her. She further explained that the blood on her clothing was her blood, not Mr. Russell's blood. (As noted elsewhere, she was on her menstrual cycle.) According to Ms. Raymond, when she called 911, she told the operator that she had not seen the shooter's face. Nonetheless, she knew that Gee was the shooter because of his voice and his clothing and shoes. She had just spoken to Gee ten or fifteen minutes before the shooting. She previously had seen Gee "quite a few times.” On re-cross examination, Ms. Raymond said that she did not recall what she told the detective about the blood on her clothes. In response to defense counsel’s question of whether she told a detective that she did not know how she got the blood on her clothes, Ms. Raymond replied that she did not recall that.

      . These facts were testified to by Cindy Woods, the New Orleans Police Department ("NOPD”) assistant police communication supervisor who supervises all 911 calls.

      . At this juncture, defense counsel filed a motion for mistrial. As discussed elsewhere, a prior motion for mistrial on the same basis was made during opening statements. The basis for the motion was that the reference to JuC’s murder is alleged to be an improper reference to "other crimes” evidence. The trial court’s denial of the motion for mistrial is the basis for both of Mr. Williams’ assignment of errors on this appeal.

      . When she was recalled by the defense, Detective Williams refreshed her memory by reviewing the supplemental report. She indicated that Mr. Williams’ address, 4216 Holleygrove Street, was found through his cell phone billing. She also indicated that immediately after the shooting Ms. Raymond told Detective Garcia that she did not know how she got blood on her clothes. Detective Williams explained that Ms. Raymond was hysterical at that time. In response to questions regarding the blood on Ms. Raymond’s clothes, Detective Williams explained that the drops of blood were on the inner part of Ms. Raymond's shoe and the inner part of her leg. Detective Williams further explained that it was not blood spatter.

        . La.C.Cr.P. art. 770 provides:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury:
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      .La.C.Cr.P. art. 771(1) provides:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or

        In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

      . As noted elsewhere, defense counsel filed another motion for mistrial during Detective Williams' testimony at trial. In response to the prosecutor's question who lived at the house, Detective Williams provided the names of the victim, Mr. Russell; the owner, Mr. Miller; Ms. Raymond; and a female whom she knew as JuC. The prosecutor then asked: "Do you know where JuC is today?” Counsel for Mr. Williams objected and stated: "[H]e is bordering on another objection for a mistrial.” Detective Williams testified that she interviewed two residents, Mr. Miller and Ms. Raymond. The prosecutor then asked: "Did you ever interview the third one?” Detective Williams replied: “No, I did not.” The prosecutor then asked: "Why not?” Counsel for Mr. Williams then stated: "Again, bordering on the same objection.” The trial court overruled the objection, and Detective Williams answered: “Could not find her.” Detective Williams answered affirmatively when asked if she attempted to find her [JuC]. Detective Williams answered negatively when she asked if she ever located JuC. The prosecutor then asked: "And [sic] are you still attempting to locate her?” Detective Williams replied: "No, I’m not.” The prosecutor asked: "Why not?” Counsel moved for a mistrial and declared: "This is the same stuff I talked about earlier.” The prosecutor and Mr. Williams's counsel approached the bench. Then the prosecutor asked if JuC was deceased, and Detective Williams answered affirmatively.