author: AMY, Judge. SAUNDERS, J., AMY, Judge.

text:
    Camille LANDRY, et al. v. PSA OF LAFAYETTE, LLC, et al.
    No. 12-277.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    Opinion on Rehearing March 20, 2013.

      Eve B. Masinter, Breazeale, Sachse & Wilson, Roy C. Cheatwood, Monica A. Frois, Brandy N. Sheely, Baker Donelson Bearman Caldwell & Berkowitz, P.C., New Orleans, LA, for Defendant/Appellee, Pediatric Services of America, Inc.
    J. Michael Veron, J. Rock Palermo, III, Veron, Bice, Palermo & Wilson, Lake Charles, LA, for Defendants/Appellees, Monica Ann Frois, Pediatric Services of America, Inc.
    William W. Stagg, Ryan M. Goudelocke, Durio, McGoffin, Stagg & Ackermann, P.C., Lafayette, LA, for Defendant/Appel-lee, Women’s and Children’s Hospital, Inc.
    John L. Hammons, Annis Cornell Rushing Flournoy, Chaile Allen, Nelson & Hammons, Shreveport, LA, for Plaintiffs/Appellants, Ryan D. Landry, et al.
    Marc W. Judice, James J. Hautot, Jr., Judice & Adley (A Professional Law Corporation), Lafayette, LA, for Defendants/Appellees, Dr. Cong T. Vo, Dr. Ro-saire Josseline Belizaire.
    James P. Lambert, Lafayette, LA, for Plaintiffs/Appellants, Camille Landry, et al.
    Stewart E. Niles, Jr., Michelle A. Bo-urque, Niles, Bourque & Fontana, LLC, New Orleans, LA, for Defendant/Appellee, The Administrators of the Tulane Educational Fund.
    Daniel G. Brenner, Eric John Miller, R. Preston Mansour, Jr., Bolen, Parker, Brenner & Lee, LTD, Alexandria, LA, for Defendants/Appellees, Daniel G. Brenner, R. Preston Mansour, Jr.
    Nadia de la Houssaye, Jones, Walker, Waechter, Poitenvent, Carrre & Dengre, L.L.P., Lafayette, LA, for Defendants/Ap-pellees, Dr. Vasanth Nalam, Louisiana Patient’s Compensation Fund.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

liThe plaintiffs filed suit against several treating physicians and a medical equipment provider, seeking damages related to brain damage suffered by their infant daughter. With regard to the medical equipment provider, the plaintiffs primarily asserted that data collected by an apnea monitoring device was negligently lost and/or not delivered to the child’s physicians. They alleged that this negligence resulted in the permanent and debilitating damage suffered by their child. Although the jury determined that the medical equipment provider violated a duty owed to the child, it further determined that the violation did not cause injury or damages. Rather, the jury attributed one hundred percent of fault to a nonparty physician. The plaintiffs appeal. For the following reasons, we affirm.

Factual and Procedural Background

Camille and Ryan Landry are the parents of Tai Landry, born August 16, 2002, at a Lafayette hospital. During this birth admission, Tai was noted to have evidence of Pierre Robin Sequence/Syndrome According to expert testimony in the record, Pierre Robin is characterized by a child’s small chin and a cleft palate. These characteristics pose the risk of the child’s tongue moving toward the back of the mouth, obstructing the airway. Tai was admitted to the neonatal intensive care unit of the hospital following her birth and was treated by neonatologists, Dr. Rosaire Belizaire and Dr. Cong Vo. During this two-week birth admission, Tai was noted to have experienced respiratory distress. Although a gastric tube was inserted during this birth admission and the possibility of a tracheotomy was discussed, the latter procedure was not performed.

Tai was ultimately discharged on August 30, 2002, with Dr. Vo prescribing the use of an apnea monitor, which, according to testimony, monitored heart rate and | ¡.chest movement within prescribed parameters. According to PSA respiratory therapist Kim Wood, when the baby’s breathing or heart rate violated the prescribed parameters, the monitor recorded the event. In the event that the monitor sensed a problem with Tai’s respiration, it alerted parents by an alarm so that Tai could be repositioned or roused as needed. When the monitor memory filled to eighty percent' of its capacity, a visual alarm alerted family members, who were then to inform PSA so that the event data could be downloaded, processed, and delivered to the ordering physician. In the event that the monitor’s memory filled to capacity, an alarm again informed the parents. As described at trial, the monitor, at capacity, would begin to discard certain data pertaining to older events in favor of data from newer events.

In the days following her release from the hospital, Tai visited a number of physicians to evaluate her condition. She began treating with her pediatrician, Dr. Vasanth Nalam, and soon thereafter, was evaluated by a geneticist. Upon recommendation of the geneticist, Tai completed a sleep study at Tulane University Medical Center with Dr. Narong Simakajornboon on September 12th-13th. According to his report, Dr. Simakajornboon recommended the use of supplemental oxygen.

Throughout this period, Tai’s monitors alerted Mr. and Ms. Landry of breathing and heart rate issues. It is uncontested that PSA twice responded and delivered downloads to physicians as required. These downloads covered the periods of August 29th-September 10th and September 10th-18th. Much of the present matter concerns data collection for the periods of September 18th-20th (Download 3) and September 20th-24th (Download 4). The record indicates that, during this period, the number and duration of events increased and certain data was lost due to the monitor having reached capacity. At issue in this case is whether PSA responded within an acceptable period of time after being informed that the monitor was reaching capacity | ¡¡and, additionally, whether the delivery of the downloads to the physicians was made. The physicians deny that they received the data.

Within the September 18th-26th period, Tai was twice hospitalized. The first hospitalization occurred on September 19th due to Tai’s dehydration stemming from excessive vomiting. In fact, Download 3 was performed during this hospitalization. After Tai returned home following her release from the dehydration hospitalization, the recordable breathing and heart rate events continued. Download 4, which included events from September 20th-24th, was performed. On September 26th, however, Ms. Landry found that Tai had become nonresponsive to her touch when the alarm sounded. Tai was returned to the hospital. According to Ms. Landry, the nurses showed signs of alarm at Tai’s condition. Subsequently, Tai underwent a tracheostomy which, according to Ms. Landry, immediately improved her condition.

Although Tai’s breathing improved, subsequent testing demonstrated hypoxic brain damage which, the record establishes, is profound and has left Tai fully dependent on others for the remainder of her life. She can neither walk nor speak. Ms. Landry is Tai’s primary caretaker.

Mr. and Ms. Landry filed this matter against PSA, Dr. Vo, Dr. Belizaire, and Dr. Nalam. The plaintiffs asserted that the hypoxic brain damage sustained by Tai occurred during the time that PSA was providing apnea monitoring services for the collection and delivery of the information to the physicians. Due to a pre-trial settlement involving Dr. Nalam, the matter proceeded against the Louisiana Patient’s Compensation Fund (the LPCF), with Dr. Nalam remaining as a nominal defendant. At the eventual jury trial spanning multiple weeks, the plaintiffs’ primary focus was 14its assertion that PSA was negligent in the performance of its monitoring services and that PSA personnel failed to deliver Downloads 3 and 4 to Tai’s physicians. That failure, the plaintiffs contended, prevented surgical intervention which could have prevented Tai’s hypoxic brain injury. PSA presented evidence, however, supporting a view that Tai’s initial injury occurred in útero and progressively evolved resulting in her ultimate damage.

The verdict sheet considered by the jury included questions pertaining to the alleged negligence and fault of the defendants as well as the alleged negligence and fault of several nonparty physicians. The jury ultimately returned a verdict imposing no liability on the part of the named defendants. While the jury answered in the affirmative to the verdict form question of whether PSA “or any of its employees violatefd] any duty it owed it Tai Landry[,]” it determined that “this violation of a duty by Pediatric Services of America, Inc. (PSA)” did not “cause any loss, injury or damage to Tai Landry.” Rather, it attributed both a breach of the duty owed and one hundred percent of the causation of the damages sustained to Dr. Simaka-jornboon. Given the attribution of fault to Dr. Simakajornboon, a nonparty, the jury awarded no damages to the plaintiffs. Subsequently, the plaintiffs filed a motion for judgment notwithstanding the verdict, which was denied by the trial court.

Ms. Landry appeals, assigning the following as error:

I. The jury committed manifest error in failing to find PSA’s conduct caused hypoxic injury to Tai Landry.
II. The trial court committed legal error by submission to the jury of a legally defective verdict form which produced jury confusion on the issue of causation, meriting de novo review.
III. The jury failed to follow the jury instruction on cause-in-fact and produced legal error meriting de novo review.
IV. The trial judge erred in denying the motion for judgment notwithstanding the verdict and in refusing to conduct a de novo review of the case.
|fiV. The jury committed manifest error and failed to follow the verdict form in awarding zero damages to all the claimants.

(Record citations included in Ms. Landry’s brief omitted.) Mr. Landry also appeals and alleges manifest error in the determination that PSA’s conduct was not a cause of the damages sustained. He also questions the failure to award damages. Each plaintiff adopts the other’s brief, assignments of error, and arguments.

Discussion

Causation

The plaintiffs question the jury’s determination that PSA breached the standard of care but that it did not cause Tai’s injuries. They argue that the jury’s full assignment of fault to Dr. Simakajornboon reflects the jury’s rejection of PSA’s theory that the hypoxic insult to Tai’s brain occurred either in útero or shortly thereafter. Instead, the plaintiffs contend that the jury determined that the brain damage occurred after the period of time when Dr. Simakajornboon had an opportunity to press for more invasive treatment in order to prevent the ultimate damage claimed. The plaintiffs assert that, with PSA’s theory eliminated, it was manifestly erroneous for the jury not to have viewed evidence of the escalating series of events occurring during Downloads 3 and 4 as at least a partial causative factor in Tai’s ultimate injury.

We note that this assignment of error is specifically targeted toward the liability of PSA, which is not a qualified health care provider under the Medical Malpractice Act. Under the relevant analysis as it pertains to PSA, the plaintiffs were required to prove that: 1) the defendant had a duty to conform his or her conduct to a specific standard of care; 2) the defendant failed to conform his or her conduct to that standard; 3) the substandard conduct was a cause-in-fact of the plaintiffs injuries; 4) the substandard conduct was a legal cause of the plaintiffs injuries; and that 5) the |r,defendant sustained actual damages. Brewer v. J.B. Hunt Transp., Inc., 09-1408 (La.3/16/10), 35 So.3d 230. A determination as to cause-in-fact is a question of fact, subject to the manifest error standard of review. Id.

We first address the plaintiffs’ contention regarding the nature of the duty breached. The plaintiffs’ argument on this point assumes that the jury determined that PSA failed to deliver, timely or otherwise, Downloads 3 and/or 4 to the physicians. However, as discussed above, the jury was only generally asked if PSA or its employees violated “any duty that it owed to Tai Landry.” The verdict sheet did not ask the jury for the precise duty it found to have been breached. For discussion purposes only, and in relation to this assignment, we consider as true the plaintiffs’ contention that the jury found that PSA failed to deliver data to the physicians.

As stated, the jury attributed one hundred percent of the fault for Tai’s injuries to a breach of duty it found on the part of a nonparty physician whose involvement in the case stemmed from a September 12th-13th sleep study at Tulane. The resulting report was addressed to the referring geneticist and was completed September 16th. The report commemorated that the purpose of the study “was to evaluate if there is any evidence of significant apnea in the patient with a history of Pierre Robin[.]” It noted that Tai had “recurrent apneaic events.” Ultimately, the report concluded that: “[T]his is an abnormal sleep with evidence of significant obstructive sleep apnea associated with significant oxygen desaturation and mild cardiac deceleration. In addition, evidence of nocturnal hypoxemia was also observed. No evidence of significant hypoventilation was noted.” Dr. Simakajornboon recommended the use of supplemental oxygen and additional evaluation. He did not recommend immediate hospitalization and/or surgical intervention.

At trial, expert witnesses called the recommendations resulting from the sleep study into question. Dr. Gary Freed, an expert in pediatrics, neonatology, and apnea 17monitoring, testified extensively regarding the use of monitors in recording apnea and heart rate events. One aspect of his deposition testimony, presented at trial by the plaintiffs, involved the risk inherent in Tai’s condition. He opined that, given the risks posed, various points throughout Tai’s first weeks required more drastic intervention. Dr. Freed identified the sleep study as one such point and concluded that it revealed breathing obstruction sufficient to warrant immediate admission for surgical intervention. Yet, the jury was aware that' Tai was neither admitted nor was surgical intervention recommended. Dr. Freed was also critical of the recommendation for supplemental oxygen because it, alone, did not overcome any airway obstruction.

Similarly, Dr. Douglas Holmes, accepted as an expert in the field of otolaryngology, concluded that the supplemental oxygen had no way to enter the obstructed pathway and determined that, given that the sleep study results were “grossly abnormal,]” Tai’s physicians should have been immediately notified and further intervention urged. However, the jury heard testimony indicating that the sleep study results were not completed until September 16th and, at that time, were prepared only for the referring geneticist. Accordingly, and under the standard of review, we find that the record, including expert testimony, supports the jury’s finding that the sleep study recommendations and/or reporting violated the standard of care.

In considering this testimony, it is apparent that, on the causation issue, the jury may have determined that the sleep study provided the point at which intervention could have prevented the damage ultimately sustained by Tai. In this regard, the jury may have reasonably concluded that immediate intervention following the sleep study, as suggested by Drs. Freed and Holmes, would have precluded the events occurring during the subsequent periods of Downloads 3 and 4, the point at which the plaintiffs contend injury occurred.

|8We further address the plaintiffs’ contention that PSA must be found to be at least comparatively at fault. Above, we rejected the plaintiffs’ assumption that the jury necessarily concluded that PSA’s substandard conduct was the failure to relay information as the plaintiffs advanced various theories of negligence. However, even assuming that the jury found that PSA failed to deliver the information during the time period of Downloads 8 and 4, the jury may not have been persuaded that the damage could have been avoided given the limitations of the home monitoring system.

The events captured during Downloads 3 and 4 were characterized as serious, ominous, and escalating. However, the jury was aware that the monitor merely captured the events and alerted the parents so that the child could be roused. The monitor did not initiate treatment. Undoubtedly, the jury may have recognized that debilitating events may have occurred before any download and delivery of the data could be made. Additionally, such events could have occurred before the monitor filled to 80%, initiating the series of events that had to occur before any intervention was even possible. Also, the jury was aware that Tai’s dangerous events neither started nor stopped with Downloads 3 and 4. Dr. Freed, for example, expressed his opinion that Tai was in “bad shape” even after Download 1, which preceded the period of the sleep study. Given this information, along with the speculative nature of the course of events the plaintiffs urge would have occurred upon delivery of Downloads 3 and 4, the jury may have felt that the plaintiffs simply failed to sustain the burden of causation with regard to PSA. We do not find that this is an unreasonable or unsupported view of events.

Finally, we point out that we consider this case under a manifest error standard of review. The scope and depth of testamentary and documentary evidence in this case is significant. The parties’ collective presentation to the jury involved multiple theories of causation, commented upon by numerous expert witnesses. We do not | flConvey here the breadth of that information nor do we discuss and/or negate the various findings possible under that evidence. Instead, we observe that, for the above reasons, the approach taken by the jury is reasonable under the record as a whole. In such an instance, an appellate court does not find that the factfin-der’s determination was manifestly erroneous. See Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030 (La.9/5/07), 966 So.2d 36. Further, to the extent that the jury’s determination was necessarily dependent on various credibility determinations involving conflicting expert testimony and interpretation of the physical evidence, we are mindful that those credibility determinations are left to the discretion of the jury. Rosell v. ESCO, 549 So.2d 840 (La.1989). Such conclusions “can virtually never be manifestly erroneous or clearly wrong.” Id. at 845.

This assignment lacks merit.

Verdict Form

We next address the parties’ contention that the jury verdict form submitted to the jury was legally defective, requiring a de novo review. The plaintiffs suggest that the jury’s findings of causation reveal jury confusion and argue that the origin of this may rest in the jury verdict sheet. The parties note that, during the jury’s four day deliberation, it asked a variety of questions. The plaintiffs suggest that these questions evidence the jury’s confusion as to causation. They contend that, although the jury found no violation of applicable duties on their part, or the part of the defendant doctors, the jury felt compelled to answer the verdict form’s causation questions. The plaintiffs assert that this confusion requires a de novo review.

As explained above, we find that a discernable path exists for the jury’s conclusions regarding causation. Although we find that the record supports the verdict upon a review of all of the evidence, we consider in this assignment whether the jury’s verdict may have been attributable to confusion surrounding the | minterrogatories posed. We are mindful in our review that, while misleading or confusing interrogatories may constitute reversible error, the manifest error standard of review is applicable unless the interrogatories are “so inadequate or incorrect as to preclude the jury from reaching a verdict based on the law and the facts.” Ardoin v. McKay, 06-171, p. 7 (La.App. 3 Cir. 9/27/06), 939 So.2d 698, 703, writ denied, 06-2606 (La.1/8/07), 948 So.2d 126.

The verdict form here inquired of the breach of the duty/standard of care of each of the defendants as well as the nonparty physicians in this case. The verdict form then instructed the jury that, if it found no such breach, they were not to engage in “further deliberations” as to that actor nor assign fault to that actor. As the plaintiffs observe, despite their findings of no breach of duty on the part of all actors other than PSA and Dr. Simakajornboon, the jury answered the causation questions regarding all of the actors. Upon review of the verdict sheet, we do not find that the questions posed are either inadequate or incorrect. Neither do we conclude that the jury’s completion of all of the questions indicates confusion regarding causation. Rather, it appears that the jury simply spoke to all of the questions. The fact that the jury found that PSA did not cause the damage to Tai and, additionally, assigned zero percent of fault to that party seemingly corroborates its finding of no causation.

Finally, the jury did, in fact, make a number of inquiries of the trial court during its deliberation. The questions, filed into the record, however, do not reveal confusion leading to an incorrect verdict. They instead reveal that the jury was deliberating on the complex and varied questions it was asked to resolve. The questions arose in a |ncase involving multiple parties, seven nonparty physicians appearing on the verdict sheet, and multiple theories of causation. In this context, we do not find that its questions indicate either confusion or error. Strikingly, the questions reveal the jury’s | ^consideration of the plaintiffs’ allegations against PSA. The jury’s ultimate determination to find no merit in those allegations does not equate to confusion.

This assignment lacks merit.

Jury Instruction — Cause-In-Fact

The plaintiffs additionally argue that a de novo review is warranted in light of what they contend was the jury’s failure to follow the trial court’s instruction on cause-in-fact. They point to that portion of the trial court’s instructions explaining that:

As to the requirement that plaintiffs’ injuries be caused by defendant’s conduct, I do not mean that the law recognizes only one cause of any injury, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things may operate at the same time, either independently or together, to cause injury or damage. You should resolve this question by deciding whether plaintiffs would probably have suffered the claimed injuries regardless of what the defendants did. If the plaintiffs probably would have suffered those injuries regardless of what the defendants did, then you must conclude that the injuries were not caused by the defendants, and render a verdict for the defendants. If, on the other hand, plaintiffs probably would not have suffered the claimed injuries in the absence of defendants conduct, then you must conclude that defendants conduct did play a part in plaintiffs injury and you must proceed to the next element.

(Emphasis added in Ms. Landry’s brief.)(FulI text of the instruction provided.) The plaintiffs contend that the jury’s completion of those aspects of the verdict form regarding causation for the parties/nonparty physicians it found not to have breached the standard of care, leads to an inference that the jury “believed that only one party could be found at fault on the verdict [sheet.]”

Our review reveals no such inference. As explained, the jury’s finding of causation was reasonable upon review of the record. And, in addition to the cause-in-fact instruction, the trial court informed the jury of comparative negligence subsequently in its instruction. The trial court spoke extensively regarding the burden 11sassociated with a finding of comparative fault on the part of the plaintiffs and then explained:

If you conclude that the defendants and the plaintiffs and/or other third parties were negligent, and that the negligence of each was a cause in fact of plaintiffs’ injuries, then you must assign percentages of fault to each one. In determining those percentages, you may consider the nature of the negligent conduct and the extent of the causal relation between the conduct and plaintiffs’ injuries.
The law requires that should you find fault then you divide the total responsibility for this incident among all those upon whom you found fault, whether parties or non-parties. You should do this by assigning percentages of fault to the various involved persons which will total 100%. You are free to assign whatever percentage you feel appropriate, and you should do so by answering the questions, which will be provided to you on a special verdict form.[]

It cannot be said that the trial court’s instructions failed to inform the jury of the law regarding causation and/or apportionment of fault among multiple actors. Additionally, the jury verdict sheet prompted the jury to apportion fault as follows:

Please state the percentages of fault attributable to Pediatric Services of America, Inc., Cong T. Vo, M.D., Ro-saire Belizaire, M.D., Vasanth Nalam, M.D., Camille and Ryan Landry, and the name of and the percentage of fault attributable to the [nonparty] physicians identified in Interrogatory No. 11 (if any). (Note that the total of your percentages must be 100%).

There is no indication that the jury was confused by any of these instructions, was incorrectly instructed, or failed to follow any of those instructions. Rather, the jury determined that the plaintiffs sustained their burden of proof as to only one actor’s fault.

This assignment lacks merit.

| uDamages

The plaintiffs next cite error in the jury’s decision not to award damages in this case and again find indication of the jury’s confusion in its decision to award zero damages. Ms. Landry notes that the jury responded “yes” to the inquiry as to whether any of the nonparty physicians’ failure to comply with the applicable standard of care “was a cause of the alleged damages suffered by the plaintiffs.” Given this response, she contends that “it is clear that the jury’s responses of either “no” or “zero” to the damage questions are internally inconsistent and more likely were the product of confusion caused by the verdict form.” She again contends that this confusion requires a de novo review.

Obviously, the human factors involved in this case are compelling. The fact that damages are associated with an infant sustaining profound and permanent brain damage, of whatever origin, is unquestioned. However, the only fault found in this case involved a nonparty, a finding we have found supported by the record. Therefore, the jury’s findings as to damages would be superfluous. Accordingly, we do not disturb the jury’s award.

JNOV

Finally, and for the issues of causation cited above, the plaintiffs contest the trial court’s denial of a judgment notwithstanding the verdict, a mechanism provided for by La.Code Civ.P. art. 1811.

In consideration of a motion for JNOV, the trial court determines whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable persons could not arrive at a contrary verdict. Joseph v. Broussard Rice Mill, Inc., 00-628 (La.10/30/00), 772 So.2d 94. The trial court is required to deny the request for JNOV if evidence opposing the motion “is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach | ^different conclusions.” Id. at 99. It may not evaluate the credibility of witnesses. Id. Further, it must resolve all reasonable inferences or factual questions in favor of the non-moving party. Id. On review, an appellate court uses the same criteria as did the trial court and first considers whether the trial court erred in its disposition of the motion for JNOV. Id. Thus, the appellate court considers whether “the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict[.]” Id.

In ruling, the trial court recognized the above standard and remarked upon the difficulty of its decision, stating that: “It almost seems as though the Jury didn’t sit through the same trial that we sat through.” However, it acknowledged that “considerable deference should be given to the Jury’s findings. All reasonable inferences are resolved in favor of a nonmoving part.” The trial court concluded:

If I could make credibility determinations, then the plaintiffs’ argument would be compelling and my ruling would probably be different.
I don’t agree with Ms. Fois that all the Jury’s questions were reasonable. I thought some of them were very unreasonable, particularly coming back again and again and saying, “How many do we need for this? How many do we need for this?” But I cannot say that the Jury did not find that the brain damage was not caused from a combination of prenatal factors and possible hypoxia or bradycardia.
PSA was made out to be negligent in several aspects. The jury found them to be negligent, but decided that there was no causation between their negligence and the damage to Tai Landry. And I can’t say why they found them to be negligent. It could be because they didn’t properly train Ms. Wood or even some other reason. I simply can’t make those calls in a JNOV.
I can’t say that Downloads 3 and 4 were not delivered to Drs. Vo and Beli-zaire. There was testimony by a former employee that they lost downloads and things like that before, contrary to their testimony.
Dr. Simakajornboon, they found, breached the standard of care. But they could have found that although he breached the standard of care, that did not cause the damage. They could have found that the damage was caused by some prenatal defect or a combination of that and hypoxia.
| j (jit’s a tough determination. It’s not — well, the law doesn’t give me a lot of a leeway, not as much as I wish I had in this case.
Even despite the loss of evidence by PSA, I still don’t think that I can legally under the law grant the plaintiffs’ judgment notwithstanding the verdict. The motion is denied.

Having reviewed the record in light of the standard of review, we leave the trial court’s denial of the motion for JNOV undisturbed. As acknowledged by the trial court, the plaintiffs presented evidence in support of their case which could have arguably supported a different result given different findings of fact and credibility. However, having found the jury’s conclusions reasonable, we do not re-evaluate its credibility or factual findings on review of the ruling on the JNOV. In short, the jury’s conclusion that the plaintiffs failed to present evidence of causation as to the named parties is reasonable.

This assignment of error lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court on the merits of this matter is affirmed. Additionally, the trial court’s judgment denying the motions for judgment notwithstanding the verdict is affirmed as well. All costs of this proceeding are assessed to the appellants, Camille Landry and Ryan Landry.

AFFIRMED.

SAUNDERS, J., dissents and assigns reasons.

SAUNDERS, J.,

dissents and assigns reasons.

| ,At the oral argument of this case, Plaintiff argued strenuously that the record contained no evidence of the standard of care required of Dr. Simakajornboon. Defendant suggested that there was evidence to this effect. This moved the court to request that the parties file post-hearing briefs on testimony as to Dr. Simaka-jornboon’s standard of care and how his alleged failure to comply with the standard of care may have caused the damage suffered by Tai Landry. These briefs document clearly that there is no testimony as to the applicable standard of care or a causal relationship between Dr. Simaka-jornboon’s care and the brain damage. My review of the record verifies the absence of any such evidence. The majority opinion, by its silence on the issue, seemingly concedes that no standard of care was established. As such, there is no evidence to justify a finding of fault on the part of Dr. Simakajornboon or to justify a finding that his actions caused the injuries sustained by Tai Landry. These finding were used to apportion zero percent fault to defendant, PSA. This is fundamental legal error.

Ordinarily, trial court findings of fact are reviewed on appeal under manifest error standard. However, as stated in Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735:

| pJWjhere one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is other complete, the appellate court should make its own independent de novo review of the record to determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. [Citations omitted.]

Where the trial court commits legal error by applying an incorrect legal standard, an appellate court is required to determine the facts de novo from the entire record and render a decision on the merits. Bell v. Ayio, App. 1 Cir.1998, 731 So.2d 893, 1997-0534 (La.App. 1 Cir. 11/13/98).

To determine medical malpractice on the part of a physician, the negligence of the physician must be proved by a preponderance of the evidence. This evidentiary standard cannot be lowered just because the physician is not there to defend himself. The jury must be instructed that the injury alone does not raise a presumption of the physician’s negligence. La.R.S. 9:2794(C). Additionally, there must be proof as to the standard of care exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances. When a physician practices in a particular specialty and where the alleged acts of medical negligence raise issues of the particular medical specialty involved, the standard of care must be that ordinarily practiced by physicians involved with the medical specialty. La.R.S. 9:2794(A)(1). Once a standard of care has been established, then, for a finding of negligence, it must be proven that the standard of care was breached and this breach resulted in the injuries sustained. La.R.S. 9:2794(A)(2 — 3).

To support a finding of fault on the part of Dr. Simakajornboon, evidence is required to prove the standard of care for a specialist in his field, breach of this |,o,standard, and causation as to the injury sustained. The record is devoid of this testimony or evidence. No standard of care as to sleep specialists was established. In the absence of evidence as to the appropriate standard of care, Dr. Simakajorn-boon cannot be cast in judgment or held to be negligent. Again, this very lengthy record before us is devoid of any evidence of the proper standard of care to be used by Dr. Simakajornboon. Again, neither the briefs of defendant nor the majority opinion dispute this fundamental absence of evidence.

I cannot overemphasize the impropriety of finding fault on the part of a physician who is a non-party and as to whom no standard of care has been established. This is high-stakes litigation. There were originally four defendants. The defense spent over two hundred thousand dollars in expert fees. That Dr. Simakajornboon was not made a party suggests strongly that there was no case against him, arguably, because he did not breach the standard of care required of his specialty and no physician could be found, by any party, to testify to the contrary.

It should also not go without notice that Dr. Simakajornboon stands to suffer great personal and professional harm by the rendition of an opinion finding him to have caused damage to this child. While this sort of professional assault may be an unfortunate but necessary consequence of litigation, we should not be insensitive to this by-product of our work and should be diligent in requiring litigants who present a claim against an absent non-defendant to meet the minimum burden of proof required by law. Here, this burden has not been met, and in my view it is a great travesty of justice to fail to correct the error.

My review of the record also suggests that PSA was clearly at fault and the jury committed manifest error in finding otherwise. The record reflects that beginning in Download 3, which itself was after Dr. Simakajornboon’s sleep study, Tai’s | condition worsened. It is legally unsupportable for the jury to have concluded that PSA, while breaching its standard of care for not relaying information that Dr. Simakajornboon did not otherwise have access to or could not have known, did not cause the damage to Tai. It is clear from the record that PSA and Kim Wood were negligent in not reacting to the results of Download 3, where a dramatic increase in hypoxic events occurred. Ms. Wood testified this should have immediately prompted her into action. The “red flag” of Download 3 filling to capacity in six hours would have prompted immediate medical intervention had it been communicated to Tai’s doctors. Instead, the information never reached her treating physicians. It is uncontroverted that, had information PSA controlled been delivered in accordance with PSA’s contractual responsibilities, Tai’s doctors would have drastically altered their recommendations for medical management of her airway. Fault is thus clear and manifest.

The damages are massive. I find all damages should be awarded. I respectfully dissent.

ON REHEARING

AMY, Judge.

hThe plaintiffs filed the initial appeal in this matter after a jury determined that the defendant medical equipment provider violated a duty owed to their minor child, but that the defendant’s negligence did not cause the injury or damages alleged. This court affirmed the judgments under review. See Landry v. PSA of Lafayette, LLC, 12-277 (La.App. 3 Cir. 11/7/12), 120 So.3d 707 (Saunders, J., dissenting).

The plaintiffs filed an application for rehearing, which was subsequently granted. After consideration on rehearing, the judgment of the trial court on the merits of this matter and the judgment denying the motions for judgment notwithstanding the verdict are affirmed for the reasons set forth in the original majority opinion released on November 7, 2012. All costs of this proceeding are assessed to the applicants on rehearing, Camille Landry and Ryan Landry.

AFFIRMED.

SAUNDERS, J., dissents for reasons assigned on original majority opinion.

      . Experts testifying as to Tai’s condition referenced it as both a sequence and/or a syndrome.

      . Mr. and Ms. Landry proceeded separately in this matter in light of their divorce during this litigation.

      . Although the plaintiffs named other defendants, these were released from the suit during pre-trial proceedings.

      . The record includes the handwritten jury requests from the jury, many of which include requests for exhibits:
      “We need Nalam’s records & hospital records”
      "Can we have dry erase markers”
      "Can we see Tai's video's from the hospital?”
      "The video Lambert showed first? We want the video where Camille was holding & feeding tube in mouth?”
      "Can we have 12 copies of the jury verdict form?”
      "Can we view the entire sleep study?”
      "If we don’t find anyone cause loss, injury, or damage, can we still award for physical pain and suffering?"
      "Life plans of Bauer (both high & low) and Hegward”
      "If we cannot agree on PSA can we make a decision on the doctors?”
      "Can we see PSA's policy — procedure?”
      "PSA Policies [requested policy sections omitted]”
      "How many have to agree for the even numbers [ (causation questions) ] for the answer to be yes”
      "Can we view Mr. Hammon’s exhibit chart and the downloads?” Upon inquiry from the trial court, the jury requested: “Mr. Ham-mons download chart & all of the episodes from downloads 1-5. With the stick on boards. Downloads 3-4 are in red.”
      "Can we have a calendar?” When asked for further detail, the jury explained: "Can we see Mr. Judice’s calendar with all of the doctor’s names and appointments?”
      "In regards to question # 11 [breach of the standard of care of the nonparty physicians] ... do you need 9 of 12 or does 1 allow you to assign fault?” To this inquiry, the trial court responded: "You need 9 of 12.”
      “We request to see Downloads 1-5. Entire download.”
      "At this moment, we do not feel that we will be able to come to a conclusion tonight. May we be excused and pick-up tomorrow morning?”
      "We do not think we to [sic] a majority decision. How much longer do we have to deliberate?”
      "Can we get the exhibit list?”
      "We need the following [ (exhibit numbers omitted) ]; Do you want us to send back the exhibits we are through with?”
      "Can we also view PSA-19 Petition for Damages ..., PSA 6B, PSA 14 & 14A.” The jury later corrected its request for PSA-91 rather than PSA 19.
      "Can we have [sic] please have the downloads back?”

      . In addition to its verbal instructions to the jury, the trial court provided a copy of the instructions, in written form. The written instructions were entered into the record. For quotation purposes, we draw from the written instructions.


source: Caselaw Access Project

author: COOKS, Judge. PICKETT, J., PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kevin Russell MARTIN.
    No. 12-395.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    On Rehearing April 17, 2013.
    Bennett R. Lapoint, Assistant District Attorney, Thirty-First Judicial District, Jennings, LA, for Prosecutor/Appellee State of Louisiana.
    Pride Doran, The Doran Law Firm, Opelousas, LA, for Defendant/Appellant Kevin Martin.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

^PROCEDURAL HISTORY

Kevin Russell Martin (Defendant), was charged by bill of information with possession of cocaine over 400 grams. He initially entered a plea of not guilty and demanded a jury trial. Prior to the commencement of trial, Defendant and the State met in chambers with the trial judge to discuss the State’s offer of a plea bargain. After the jury voir dire, Defendant informed the trial court he wished to change his plea and entered a plea of nolo contendere. In accordance with the plea bargain agreement, Defendant entered a plea of no contest to possession of cocaine with intent to distribute. In conformity with the terms of the plea agreement, Defendant was sentenced to serve ten years in the custody of the Department of Corrections, the first two years to be without benefit of parole, probation, or suspension of sentence.

On the same morning as he appeared for sentencing, Defendant filed a motion to appoint Mr. Pride Doran (Doran) as his attorney of record, replacing his previously retained attorney. Defendant moved to withdraw his guilty plea stating only that his plea was not knowingly and voluntarily entered. Defendant did not offer any evidence to support his claim nor did he elaborate on any alleged specifics forming the basis of his motion to withdraw his guilty plea. The trial court allowed Doran to enroll as counsel of record for Defendant and denied Defendant’s motion to withdraw his guilty plea. The trial judge articulated his reasons for denying the motion stating: “Well, the Court is very familiar with the case. I went through an extensive [Bjoykinization with Mr. Martin and his attorney to make sure that his— his plea was knowingly and voluntarily made.” Defendant objected to the trial court’s ruling and gave notice of his intent to appeal. Defendant is before this court challenging the voluntariness of his plea.

J¿FACTS:

The statement of facts given at the plea proceeding is as follows:

[ 0 ]n or about December the 19th of 2010, the defendant, Kevin Russell Martin, was driving a motor vehicle on Interstate 10 in our parish when he was stopped by State Trooper Chance Thomas for failure to dim his lights. When the officer came into contact with him, he noticed that he had a female passenger in the vehicle with him named Lanessa Bipelegha. The officer noticed that he was extremely nervous, and that he was speaking loud so that the passenger could hear what he was saying. He was driving a rental vehicle that was rented by him — by himself, Mr. Kevin Russell Martin. He avoided eye contact with the officer, and the officer also smelled an overwhelming odor of grape air freshener emanating from the inside of the vehicle. Trooper Thomas asked for and was granted consent to search the vehicle. They thoroughly searched the vehicle and found approximately a little over two (2) kilograms of cocaine concealed in the battery in the vehicle. Mr. Martin, at the time, had approximately nine hundred dollars ($900.00) cash on his person and had a small child in the vehicle with him. When he was asked, Mr. Martin, who was from San Antonio, Texas, told the officer that he was going to Atlanta, Georgia, to meet with a cousin.
... the defendant, Mr. Martin, gave a written statement to state police exonerating the female occupant of the vehicle and admitting to the officers that he was getting paid three thousand dollars ($3,000.00) to drive the vehicle for some other third person, and that this was not — this was the second time that he had done this act.

The State introduced a lab report as evidence demonstrating that the substance obtained from Defendant’s rented vehicle was in fact cocaine and amounted to a total weight of 2,141.5 grams of cocaine. The State also introduced a voluntary statement by Defendant as evidence of the charged offense. In that statement Defendant stated:

I was told if I meet a person in Louisiana I would get paid B thousand dollars, alls (sic) I had to do is Drive to that person. I didn’t get any specifics didn’t know what the car contained I did it once before. I asked my girlfriend if she would drive with me and she said yes, she had no involvement or knew nothing about what I was doing. Just wanted my kids to have a good Christmas.

|sASSIGNMENT OF ERROR NO. 1:

Defendant requests this court review the record for errors patent. All appeals are reviewed for errors patent on the face of the record in accordance with the provisions of La.Code Crim.P. art. 920. After reviewing the record, we find there are no errors patent on the face of the record.

ASSIGNMENT OF ERROR No. 2:

Defendant alleges the trial court erred in failing to grant his motion to withdraw his guilty plea as it was not knowingly and voluntarily made. Although Defendant did not allege any factual basis in support of his motion in the trial court, he contends on appeal that his plea was not knowingly and voluntarily entered because he was incorrectly advised that he would not be eligible for good-time release if he was convicted of the more serious offense with which he was originally charged. He asserts it “cannot be reasonably argued that this was not an important factor in his consideration of the plea offer.” Accordingly, he requests this court reverse the trial court’s ruling and enter a judgment in his favor.

In response, the State asserts the trial court’s mistake regarding Defendant’s ineligibility for parole, probation, or suspension of sentence was made during the pretrial conference where Defendant was advised of the State’s plea offer and advised of the possible consequences if he was convicted of the charged offense. The State maintains Defendant was properly “Boykinized” thereafter and was not informed at that point that he would be ineligible for good-time on the original charge. The colloquy in the record reflects Defendant was informed as to the specifics of the plea agreement correctly. The misinformation regarding the penalties for the original offense charged were not repeated by the trial judge orally; however, the written form made part of the plea hearing, signed by ^Defendant, incorrectly indicates that the penalty for the offense originally charged is “imprisonment, at hard labor, not less than 15 years, not more than 30 years, without the benefit of parole, probation, or suspension of sentence, a fine of not more than 250-600k or both.” (emphasis added) This information was incorrect. In the margin on this form is the hand-written notation, “2-w/o benefit 15 yrs” an apparent reference to the proposed plea agreement. Further, the State asserts, Defendant benefitted from the plea by receiving a much shorter sentence and no monetary fine. The State points out at the motion to withdraw his plea, Defendant introduced no testimony or evidence that the misstatement by the trial court affected his decision in any way. The State notes Defendant’s argument at the hearing was simply that withdrawal of the plea would be fair and just asserting only that the guilty plea was not knowingly and voluntarily entered. Accordingly, the State contends the trial court did not abuse its discretion in denying Defendant’s motion to withdraw his plea as he neither presented evidence to support his allegation nor offered any factual basis in support of his motion.

The record reflects that prior to the commencement of jury selection, in discussing a plea offer by the State, the trial judge in-chambers informed Defendant that if he was found guilty of possession of cocaine over 400 grams, he faced a hard labor sentence of not less than fifteen nor more than thirty years. Additionally, he informed him that he could be fined not less than $250,000.00 nor more than $600,000.00. The judge also, at that time, informed Defendant that at minimum, he would have to serve fifteen years without benefit of parole, probation, or suspension of sentence. This information was not correct. In this exchange Defendant was indeed misinformed as to the potential sentence he would receive if convicted of the original, more serious, criminal offense.

RWhen the judge first asked Defendant in chambers whether he understood the sentence the State was recommending in conjunction with the plea agreement, Defendant said he was confused. Defense counsel then stated for the court that the plea offer was ten years with benefits. He said he explained to Defendant that he was eligible for the “good time rule” which was thirty-five days for every thirty served or roughly four years and ten months before he would be eligible for good time release. The prosecutor explained that the plea offer was to an amended charge of possession of cocaine with intent to distribute, which would get Defendant “around the provision of without benefit of parole, probation, or suspension of sentence.” When Defendant was asked if he understood this, he said he did not. The court then explained the plea offer to Defendant. The State would allow him to plead to the amended charge of possession of cocaine with intent to distribute, he would serve ten years in the Department of Corrections, and he would be eligible for good time and parole. The judge said:

All right. So you’re looking at a little less than five (5) years; whereas, if you go to trial and you are found guilty as charged, which I understand you’re going forward as charged....
—you would have to serve fifteen (15) years minimum. You could not be eligible for •parole or good time or anything. You’d have to serve the fifteen (15) years before they would even entertain a release date for you, okay, (emphasis added)

The judge then encouraged Defendant to speak to his attorney because trial was to commence later that day. Court recessed at that point and later resumed with jury selection.

During voir dire, Defendant indicated he wished to change his plea to a nolo contendere plea to the amended charge of possession of cocaine with intent to distribute. The trial judge explained in detail to Defendant that by pleading no | r,contest, he was giving up his right to a trial, the prohibition against self-incrimination, his right to confront his accuser, his right to compulsory process, and his right to appellate review. Defendant acknowledged he understood.

Before sentencing, new defense counsel, Doran, filed a Motion to Withdraw Guilty Plea contending Defendant’s plea was not knowingly and voluntarily entered. Counsel appeared in court for a hearing on the motion and stated it was his understanding the court was going to deny the motion, but he informed the court he had a copy of the motion “for completion of the record purposes.” He then explained:

The basis of the motion, Your Honor, is per its wording that Mr. Martin asserts that his guilty plea was not knowingly and voluntarily made at the time and respectfully suggests to the Court that withdrawal would be fair and just under the circumstances. There’s really no argument further than that, Your Honor, that we’d be inclined to offer at this time, so—

The judge denied the motion, noting that he went through an extensive Boykin-ization with Defendant and his attorney to ensure his plea was knowingly and voluntarily made. Counsel did not present any argument or evidence to the trial court regarding the claim that Defendant was misinformed about his good-time eligibility.

In State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, the defendant claimed on appeal that the trial court failed to notify the defendant of the sex offender registration requirements rendering his no contest plea involuntary. Thus, counsel contended that the trial court erred in denying the motion to withdraw his plea of no contest. This court noted:

Initially, we note that the argument regarding the sex offender registration requirements was never presented to the trial court in support of the motion to withdraw the plea. Instead, the defendant relied on the alleged statement made by the victim. In light of the testimony given by Vanity Edmonds and the arguments presented to |7the trial court, we find that the trial court did not abuse its discretion when it denied the defendant’s motion to withdraw his no contest plea. See La.Code Crim.P. art. 559; State v. Grogan, 00-1800 (La.App. 3 Cir. 5/2/01); 786 So.2d 862. However, due to the constitutional nature of the defendant’s argument that his plea was not freely and voluntarily entered, we will consider whether the trial court’s failure to inform the defendant of the sex offender registration requirement invalidated his no contest plea under the particular facts and circumstances of this case. See State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98); 716 So.2d 36. Id. at 1099.

As in Williams, we find the trial court did not abuse its discretion in denying the motion to withdraw the plea of no contest as Defendant offered nothing in support of his motion. The record demonstrates Defendant was properly “Boykin-ized,” and there was no obvious indication at the plea proceeding that his plea was involuntarily entered. However, for the reasons discussed in Williams, we must now consider whether the misinformation regarding good-time eligibility at two stages of the proceedings, including at the plea proceeding on the written form, rendered Defendant’s plea invalid.

Defendant would have been eligible for diminution of sentence for good behavior for a conviction of possession of over four hundred grams of cocaine, the offense with which he was originally charged.

In State ex rel. Miles v. State, 02-1843 (La.App. 3 Cir. 9/5/03), 855 So.2d 732, the supreme court held:

Granted. The district court is ordered to appoint counsel for relator and to hold a hearing at which it will determine whether misinformation with regard to relator’s eligibility for diminution of sentence pursuant to La.R.S. 15:571.3 (“good time”) constituted a material inducement for his guilty plea to armed robbery which | precluded relator from entering a knowing and voluntary guilty plea “with eyes open,” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), and entitles him to withdraw that plea. See State ex rel. Aleman v. State, 99-0488 [99-1180] (La.10/1/99), 745 So.2d 602.

Recently, in State v. Dugas, an unpublished opinion bearing docket number 11-165 (La.App. 3 Cir. 4/25/12), 2012 WL 1413929, this court was presented with an issue similar to the one presented in this case. The defendant claimed on appeal that the trial court misinformed him that he would receive the same sentence for his second habitual offender offense as he had received for the underlying offense. The defendant argued that the sentence imposed for his underlying offense of forgery had no restrictions on probation or suspension of sentence and that it appeared he was also eligible for diminution of sentence. He contended that once sentenced as a habitual offender, he was no longer eligible for these benefits. Thus, he contended his sentence was not in accordance with the plea agreement that he would receive the same sentence. He requested remand for a hearing at which he should be allowed to plead anew or withdraw his plea and proceed to trial if he so desired. This court noted that a sentence for forgery does not restrict eligibility for diminution of sentence, but a habitual offender sentence meeting the criteria of La.R.S. 15:571.3(C) does. Accordingly, this court concluded the defendant was not entitled to diminution of sentence as a habitual offender, but he would have been eligible on his underlying conviction of forgery. This court ordered the trial court “to appoint counsel for Defendant, and to hold a hearing at which the trial court will determine whether Defendant’s eligibility for diminution of sentence affected the knowing and voluntary entry of his guilty plea to the habitual offender bill and entitled him to withdraw that plea.” Id. at 14.

|9In State v. Clark, 97-1064 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, 742, this court stated the following in its decree:

For the above reasons, we remand this case with instructions that the trial court (1) conduct an evidentiary hearing within thirty days of this date to determine whether defendant knowingly and intelligently waived his right to trial by jury and (2) re-lodge the appellate record, supplemented with a transcript of the hearing, within fifteen days of the hearing. The State and defendant will be given the opportunity to file supplemental briefs, should either party wish to raise any issues arising from the hearing.

The procedure in Clark was revised in State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866. Accordingly, we remand this case and order the trial court to conduct an evidentiary hearing within thirty days of the date of this opinion to determine whether the misinformation regarding Defendant’s eligibility for diminution of sentence for the charge of possession of over 400 grams of cocaine vitiated his no contest plea to the amended charge of possession with intent to distribute cocaine and entitles him to withdrawal of that plea. The trial court is further ordered to prepare and lodge an appellate record with this court that contains the transcript of the above-referenced eviden-tiary hearing within ten days of the hearing. Once this record is lodged with this court, the State and Defendant will be given the opportunity to file briefs should either party wish to raise any issue arising from the hearing.

REMANDED FOR EVIDENTIARY HEARING.

PICKETT, J., dissents and assigns written reasons.

PICKETT, J.,

dissenting.

liThe defendant has had an opportunity to be heard in the trial court. At that hearing, he had the burden of proving that his guilty plea was not knowingly and voluntarily made. The record is clear that he failed to meet that burden of proof. Therefore, his conviction should be affirmed.

ON REHEARING

PICKETT, Judge.

hThe record demonstrates clearly that the initial plea was properly taken. While the defendant was misinformed regarding parole and good time eligibility, he was allowed to ask the court any questions about his plea and on the form he signed. He indicated he had none. His motion to withdraw his plea was fixed for hearing. At the hearing, he failed to present any evidence. He simply presented an argument that his plea was not knowingly and voluntarily made. He went on to say that “[t]here’s really no argument further than that, Your Honor....”

As the defendant has already had a hearing in the trial court and he failed to show why his plea was not knowingly and voluntarily made, we find no support for the contention that he is entitled to another hearing. The defendant’s conviction is affirmed.

AFFIRMED.

COOKS, J., dissents.

      . The State concedes that the trial judge mistakenly told the Defendant that he would not be eligible for good-time. At the time of the commission of the offense, the guilty plea, and sentencing, La.R.S. 15:571.3 did not deny diminution of sentence for a conviction of possession of cocaine over four hundred grams.


author: KEATY, Judge.

text:
    Joshua B. DOUCET v. NATIONAL OILWELL VARCO FLUID CONTROL.
    No. 13-57.
    Court of Appeal of Louisiana, Third Circuit.
    May 22, 2013.

      Marcus Zimmerman, Attorney at Law, Lake Charles, Louisiana, for Plaintiff Ap-pellee Joshua B. Doucet.
    Charles A. Mouton, Jared L. Foti, Mah-took & LaFleur, L.L.C., Lafayette, Louisiana, for Defendant Appellant National Oil-well Vareo Fluid Control.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| defendant, National Oilwell Vareo Fluid Control (NOV), appeals a judgment rendered by the workers’ compensation judge (WCJ) in favor of its former employee, Joshua Doucet (Doucet), finding that he was injured in a work-related accident and awarding him workers’ compensation benefits along with penalties and attorney fees. Doucet answers the appeal and asks for additional attorney fees for work related to this appeal. For the following reasons, we affirm and award Doucet additional attorney fees on appeal.

FACTS AND PROCEDURAL HISTORY

On December 30, 2010, Doucet filed a 1008 Disputed Claim for Compensation (1008) against NOV, seeking benefits and medical treatment pursuant to the Louisiana Workers’ Compensation Act (LWCA), La.R.S. 23:1021-1415, for injuries that he allegedly sustained in a workplace accident on August 22, 2010. At the time of the alleged accident, Doucet was employed as a service technician with NOV working in Caddo Parish, Louisiana. The job location was approximately three hours from Dou-cet’s home in Welsh, Louisiana; thus, Dou-cet was staying at an apartment complex supplied by NOV for housing its out-of-town employees. Doucet alleges he contracted a methicillin-resistant staphylococcus aureus (MRSA) infection on August 22, 2010 from the apartment supplied by NOV. Doucet further sought an award of statutory penalties and attorney fees, characterizing NOVs failure to pay compensation benefits as arbitrary and capricious and alleging that NOV had failed to reasonably controvert his claim. In its answer to Doucet’s 1008, NOV asserted that its denial of benefits was reasonable and proper, and it disputed Doucet’s allegation that its actions were arbitrary, capricious, or unreasonable.

| ¡After a trial on the merits which took place on July 9, 2012, the WCJ took the matter under advisement. In a written judgment signed on September 21, 2012, the WCJ ruled in favor of Doucet and held that he carried his burden of proving a causal connection between the MRSA staph infection and his residence at the apartment. Accordingly, the WCJ awarded Doucet the following: (1) temporary total disability benefits from November 4, 2011 to February 18, 2012 in the amount of $2,146.14; (2) medical benefits including reimbursement of out-of-pocket medical expenses and mileage expenses; (3) $2,000.00 in penalties for failure to pay indemnity benefits; (4) $2,000.00 in penalties for failure to pay medical benefits; and (5) attorney fees in the amount of $10,000.00, with interest, including litigation expensestotaling $754.78.

NOV is now before this court asserting that: (1) the trial court erred as a matter of law in failing to address whether Doucet sustained an “injury by accident” as defined by the LWCA; (2) the trial court erred in awarding medical and indemnity benefits to Doucet as a result of an MRSA staph infection without competent medical evidence to causally relate the infection to his employment with NOV; and (3) the trial court erred in awarding penalties for failure to pay medical and indemnity benefits and attorney fees for prosecution of the claim.

DISCUSSION

I. Personal Injury By Accident

NOV contends that Doucet did not sustain an injury by accident as defined by the LWCA. In Green v. National Oilwell Varco, 10-1041, pp. 2-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 357-58, this court noted:

A worker bringing a compensation action against his employer bears the burden of proving, as a threshold requirement, that he suffered “personal injury by accident arising out of and in the course |sof his employment.” La.R.S. 23:1031(A); Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).
This court discussed the standard of review to be employed in workers’ compensation cases in Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784:
Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

As mentioned above, NOV contends that Doucet did not sustain an injury by accident as defined by the LWCA. NOV alleges that the trial court’s oral reasons for judgment solely address the issue of causation and are silent as to whether 14Poucet sustained an “accident” or “injury” as defined under the LWCA. Doucet counters that NOV’S argument is without merit.

The record shows that Doucet was twenty-six years old and was employed by NOV for approximately five years when the accident occurred. At trial, Doucet testified that he was a service technician. His job location was located in north Louisiana and far away from Doucet’s home in Welsh, Louisiana; thus, he would stay at the Hillside Apartments (the apartment) when working that location. Doucet testified that the apartment was supplied by NOV for housing its out-of-town employees. Doucet would stay at the apartment when he was not servicing a rig. Doucet testified that usually “six, seven people stayed in there at a time,” including other NOV employees and service technicians. Dou-cet testified that “[p]eople just came in as they came from rigs and stuff like that, to swap out, and we just kind of — it was kind of like having a meeting area is what it was.” Although he acknowledged that a cleaning lady came “once a week and vacuumed” and “wiped down the sinks and stuff,” Doucet testified that “people came in and — all the time dirty and laid on the couches and furniture.” According to Doucet, the apartment was not spotless “by any means.”

On August 22, 2010, Doucet testified that he noticed a bump on his left leg. Medical records indicate that he presented to the emergency room on August 30, 2010, for treatment of the bump. At that time, Dr. James Kyle (Dr. Kyle) performed an incision to drain the abscess, prescribed medication, and instructed Dou-cet to follow up with his family physician. Doucet then presented to his family physician, Dr. Patrick Griffith (Dr. Griffith), who diagnosed the bump as a staph infection. Dr. Griffith incised the bump or boil, drained it, and packed the abscess. He released Doucet back to work on September 7, 2010.

IfiDoucet then worked for NOV until approximately October 29, 2010, when he noticed a new bump on his left leg, which was very similar to the one of August 22, but more aggressive. Dr. Thomas Ros-sowski (Dr. Rossowski) performed surgery on November 5, 2010, wherein he determined that Doucet had MRSA, which was a very aggressive, antibiotic-resistant form of staph. Dr. Rossowski’s notes indicate that, based on the history given to him by Doucet, a shared apartment was the source of the staph/MRSA infection.

Following the surgery, Dr. Tyson Green (Dr. Green) provided wound care for Dou-cet. With respect to the MRSA which is the subject of this lawsuit, Dr. Green testified that he treated Doucet from November 19, 2010, through February 23, 2011. During this time, Dr. Green advised that he did not want Doucet to work. According to his deposition, Dr. Green released Doucet to work on February 18, 2011.

In addition to providing the WCJ with his medical records, Doucet testified that he discussed the situation with a NOV supervisor, Terry Walraven (Walraven), who mentioned that Doucet’s bump sounded like the same ailment that plagued another co-worker named Kelly Hanks (Hanks). Doucet also testified that this was confirmed by another supervisor, Al-cide Hargrave (Hargrave). Doucet maintained that Hargrave told him that Doucet probably contracted the bump from “that nasty apartment” as people were “getting it left and right.”

By deposition, Hanks corroborated Dou-cet’s testimony. Hanks testified that his last day of work was July 6, 2010. Hanks stayed at the apartment, arriving for | fihis hitch around two weeks prior to July 6, 2010. Hanks testified that he had to leave work because of a boil that appeared around five days before July 6, 2010. Hanks testified that after August 22, 2010, Doucet contacted him to discuss the bumps, which Hanks referred to as boils. Doucet sent a photo of his boil or bump to Hanks over the phone. Hanks testified that it looked very similar to his. Hanks testified that he discussed the matter with his physician, Dr. Richard of Kaplan, Louisiana, who confirmed to Hanks that the boil(s) were evidence of a staph infection. Before July 2010, Hanks had never suffered from a staph infection. Hanks further testified that he had heard that a couple of other employees at NOV, Steven Hebert and Lawrence Bellard, had similar boils removed. At trial, Doucet corroborated Hanks’ testimony on this point.

In its written judgment, the WCJ indicated:

IT IS ORDERED that claimant has carried his burden of proving a causal connection between claimant’s MRSA staph infection and his residence at the apartment provided by the employer, National Oilwell Vareo Fluid Control.

In its oral reasons for judgment, the WCJ further stated:

After reviewing the record, considering the law and the evidence, the Court finds that the claimant has carried his burden of proving a causal connection between his MRSA staph infection and his residence at the apartment provided by the employer, National Oilwell. His physician, Dr. Tyson Green, opined that due to the nature of [the] accident and the other facts of the case, it is probable that claimant’s condition was contracted during the course and scope of his employment with National Oilwell. The court finds that due to the nature of the incident, when combined with all of the facts of the case, such as a communal apartment, weekly housekeeping, rotating in and out of the apartment with bed linens being changed weekly, the evidence more probable than not is more than evenly balanced in favor of the claimant. The evidence raised a natural inference of causal connection to the workplace environment as the reasonable cause of the MRSA staph infection. For these reasons, judgment is rendered in favor of the claimant and against the defendant.

|7As a preliminary matter, we agree with the finding implicit in the written judgment and oral reasons for judgment entered by the WCJ that Doucet suffered personal injuries as the result of an accident that occurred during the course and scope of his employment with NOV. Thus, NOVs argument that Doucet did not sustain an injury by accident since the WCJ’s oral reasons for judgment is silent regarding same is without merit.

II. Causal Connection

“‘To establish that a claimant is entitled to workers’ compensation benefits, claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability.’ ” Broussard v. Stine Lumber Co., 11-168, p. 9 (La.App. 3 Cir. 1/25/12), 82 So.3d 1274, 1279, writ denied, 12-451 (La.4/13/12), 85 So.3d 1250 (quoting Ceasar v. Crispy Cajun Rest., 94-30 (La.App. 3 Cir. 10/5/94), 643 So.2d 471, writ denied, 94-2736 (La.1/6/95), 648 So.2d 931). The claimant must establish a causal link between the accident and the subsequent disabling condition. Marks v. 84 Lumber Co., 00-322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751. “The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury.” Buxton v. Iowa Police Dept., 09-520, p. 12 (La.10/20/09), 23 So.3d 275, 283. If the evidence leaves the probabilities of causation equally balanced, the claimant fails to carry his burden of proof. Bernard v. O’Leary Bros. Signs, Inc., 606 So.2d 1331 (La.App. 3 Cir.1992).

In Odom v. Kinder Nursing Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 132, we directed that:

|s“The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. LeBlanc [v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1 Cir. 6/28/96)], 676 So.2d [1157,] 1161. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. LeBlanc, 676 So.2d at 1161.” Walker v. High Tech Refractory Servs., Inc., 03-1621, p. 4 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

Additionally, “[t]he totality of the evidence, lay and medical, resolves the issue. The fact finder is free to accept or reject the opinion of a physician or medical expert depending upon that expert’s qualifications, credibility and testimony.” Alley v. Perini/O & G Indus., 44,268, p. 3 (La.App. 2 Cir. 5/13/09), 12 So.3d 427, 430.

NOV contends that Doucet failed to prove a causal connection between the staph infection and his employment by a preponderance of the evidence. In opposition, Doucet contends that NOV’s argument lacks merit.

With respect to causation, NOV retained Dr. Sandra Kemmerly (Dr. Kemmerly) to offer support for their argument. According to Dr. Kemmerly’s October 27, 2011 report, staph or MRSA can become infectious “if they enter the body, even through such minor trauma as scratching an insect bite, cuts, scrapes or scratches” and “produce pus-containing abscesses anywhere on the body.” Dr. Kemmerly stated that “[tjhese infections are generally minor, such as a skin pimple or boils(s), but can cause more serious infections, such as blood stream infections or pneumonia.” Dr. Kemmerly further opined that in order to contract the staph infection, the “skin integrity” must be compromised or have at least a little opening. Dr. Kemmerly noted that a person can be a carrier of a staph bacteria but not be infected unless the bacteria enters some opening in the skin.

19Pr. Kemmerly agreed that Doucet contracted MRSA. Dr. Kemmerly listed the main risk factors for catching MRSA as “young age, ... sharing towels, razors, ... living in crowded or unsanitary conditions, including military training camps and prisons.” Dr. Kemmerly opined that “[tjhese infections are most likely to be spread in places where people are in close contact with others.” Dr. Kemmerly indicated that “high risk environments” included “crowded living spaces.” Dr. Kemmerly suggested that in order to prevent MRSA, individuals should avoid sharing personal items; frequently wash linens and towels; avoid sleeping on unlaundered bed linens used by others; and frequently sanitize hands with soap and water or an alcohol-based hand sanitizer.

Dr. Kemmerly opined that it was improbable that Doucet caught staph from Hanks since they had no contact with each other for the seven-week period between Hanks’ infection, i.e., early July 2010, and Doucet’s infection, i.e., August 22, 2010. Dr. Kemmerly concluded that “[b]ased on the currently available information, no one can determine with any degree of certainty or probability the origin of Mr. Doucet’s acquisition of the MRSA” in part because MRSA “is so wide spread and prevalent in the community.”

Similarly, Doucet’s expert, Dr. Green, testified that he could not state with absolute certainty that the apartment was the source of the MRSA since no culture was taken at the time of Doucet’s first sign of infection. Dr. Green testified, however, that it was possible that Doucet may have contracted the staph infection while at work during the week of August 17 to 22, 2010, assuming he was either at work or the apartment during ninety percent of the time. Dr. Green further testified that a causal connection possibly existed between the apartment and Doucet’s MRSA assuming the possibility that a co-worker, i.e., Hanks, contracted | ina staph infection one or two months prior while staying in the same apartment, under similar circumstances.

Dr. Green testified that, prior to his treatment of Doucet in the present matter for MRSA, he treated Doucet multiple times for chronic dermatitis on his lower legs. Doucet’s dermatitis resulted from a chemical burn he suffered to his lower legs. Dr. Green opined that any little opening in the skin can serve as a conduit for a staph infection to enter the body. Dr. Green also stated that symptoms of MRSA normally appear within forty-eight to seventy-two hours of contracting MRSA.

The opinions of Drs. Green and Kem-merly, along with the medical records and testimony discussed above, establish the following: Before the period of August 17 to 22, 2010, Doucet had a chronic rash; yet, he had never been infected by staph. Doucet’s symptom of staph/MRSA appeared on August 22, 2010, or after he had stayed at the employer-provided apartment for five days, i.e., August 17 through August 22, 2010. The medical evidence establishes that symptoms of staph normally appear within forty-eight to seventy-two hours after infection or within the crucial period Doucet stayed in the apartment. The medical evidence indicates there must be an opening in the skin to contract a staph infection. The description of the apartment fits Dr. Kemmerly’s definition of a prime source for contracting a staph infection.

NOV offered no evidence to refute the noted description of the living conditions of the apartment or Dr. Kemmerly’s description of such an apartment being a prime source of the staph bacteria.

In fact, and as mentioned above, the WCJ found that:

[ D]ue to the nature of the incident, when combined with all of the facts of the case, such as a communal apartment, weekly housekeeping, rotating in and out of the apartment with bed linens |T1being changed weekly, the evidence more probable than not is more than evenly balanced in favor of the claimant.

A reading of the WCJ’s reasons for judgment indicates that the WCJ relied on credible evidence in reaching a favorable decision in Doucet’s favor. We find that the WCJ was not manifestly erroneous. Accordingly, NOV’s argument lacks merit.

III. Penalties and Attorney Fees

NOV contends that the WCJ’s award of penalties and attorney fees are unwarranted in this matter. In Green, 63 So.3d at 364, we noted:

Louisiana Revised Statutes 23:1201 is the relevant statute in determining whether an employer should be assessed penalties and attorney fees for failure to timely pay indemnity or medical benefits. The statute provides that no penalties or attorney fees shall be assessed “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer ... had no control. La.R.S. 23:1201(F)(2). Further, “[t]o avoid the imposition of penalties and attorney fees for the nonpayment of benefits, the employer has a continuing obligation to investigate, to assemble, and to assess factual information before denying benefits.” Romero v. Northrop-Grumman, 01-24, pp. 10-11 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, 1156, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144.
An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Furthermore, the decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest error.
Odom, 956 So.2d at 141-42 (citations omitted). “The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers.” Burns v. Interstate Brands Corp., 09-705, p. 7 (La.App. 3 Cir. 2/3/10), 30 So.3d 271, 277.

As mentioned above, the evidence establishes that the living conditions of the apartment where Doucet stayed during the period of August 17 through August 22, 2010, were a prime source from which to contract a staph/MRSA | ^infection and that Doucet contracted a staph/MRSA infection no later August 22, 2010, or within the standard time frame from infection to manifestation (forty-eight to seventy-two hours). The employer has not submitted evidence to contradict this. Additionally, Doucet testified that shortly after August 22, 2010, two of his supervisors, Walraven and Hargrave, indicated that another employee had a similar infection. Notably, no testimony was offered to refute Dou-cet’s testimony. Instead, Hanks, by deposition, verified Doucet’s allegation that another employee, i.e., Hanks, suffered from the same ailment.

After reviewing the testimony and evidence in this matter, we are convinced that NOV did not reasonably controvert Dou-cet’s claim. Accordingly, the WCJ did not err in awarding penalties and attorney fees to Doucet.

IV. Doucet’s Answer to Appeal

Doucet answered NOV’S appeal seeking additional attorney fees for work done on appeal. In Nash v. Aecom Technology Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” Accordingly, Doucet is awarded an additional attorney fee of $3,000.00 for the work done on appeal.

DECREE

The judgment rendered by the workers’ compensation judge in favor of Joshua Doucet is affirmed. Doucet is awarded additional attorney fees of $3,000.00 for work performed on this appeal. All costs of this appeal are assessed against National Oilwell Vareo Fluid Control.

AFFIRMED.

      . Additionally, Dr. Green treated Doucet for chronic dermatitis of his lower legs from June through July 2010, which is prior to Dr. Green’s treatment of Doucet’s MRSA in the present matter.

      . There is no deposition testimony of Walra-ven or Hargrave contained in the record.

      . According to Dr. Kemmerly, MRSA is a specific type of staph which is resistant to methicillin, a Penicillin type of antibiotics.