author: MOORE, J.

text:
    John MARTIN, Jr., Plaintiff-Appellee v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF STATE POLICE, Defendant-Appellant.
    No. 47,647-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Louisiana Department of Justice, Shreveport, LA, by Mary Lou Blackley, for Appellant.
    Chris L. Bowman, Jonesboro, LA, for Appellee.
    Before STEWART, MOORE and SEXTON, Pro Tempore, JJ.
   MOORE, J.

The plaintiff sued the State of Louisiana, Department of Public Safety and Corrections, Office of State Police, for defamation damages arising out of a news release by Troop E of the Louisiana State Police regarding a fatal automobile accident. The news release named the plaintiff, “John Martin, Jr., (W/M 87yrs)” as the driver of a pick-up truck on La. Hwy. 156 in Winn Parish, of which he lost control and rolled several times, ejecting his passenger, who was killed when struck by an oncoming vehicle. The report also stated that “alcohol usage is suspected of Mr. Martin, Jr.” The evidence at trial established that the driver was actually the plaintiffs father, of the same name but absent the suffix “Jr.” No explanation was forthcoming from the evidence as to how the mix-up occurred. The court held that the State was liable for defamation. After granting a new trial on the issue of damages, the court awarded the plaintiff $10,000 in damages with interest from date of judicial demand. The state filed this appeal. We reverse and render judgment.

Facts

The accident occurred on November 18, 2007, involving a Dodge pick-up truck owned and operated by Mr. John K. Martin. Known by his friends as Johnny Martin, age 56, Martin’s full name is John Kelly Martin. Mr. Martin has a son named John Kelly Martin, Jr., (known as “Kelly Martin”), age 37.

Johnny Martin lost control of his 2006 Dodge pick-up truck (vehicle # 1) while driving east on a curve of Hwy. 156. Leaving the highway, he hit a tree and the vehicle rolled over, ejecting his unrestrained passenger, Jimmy B. Griffin, Jr. Mr. Griffin landed on the highway and was immediately struck and killed by an oncoming westbound Kia Spectra (vehicle # 2). Debris from the rolled pick-up also damaged a third vehicle (vehicle # 3 on the report).

State Trooper C.J. Nugent from Troop E was dispatched to the accident scene. He arrived just after an ambulance left the scene carrying Johnny Martin to Lincoln General Hospital in Ruston. Winn Parish Deputy Joe Hines, who had arrived at the scene before Nugent, gave Nugent the vehicle registration certificate and told Nu-gent that the driver’s name was Johnny Martin. The truck was registered to John K. Martin, Sr. and the registration listed a Winnfield address. Nugent was unable to examine Johnny Martin’s driver’s license, which Martin still had with him in the ambulance en route to the hospital.

Because alcohol use was suspected as a cause of the accident, Nugent radioed headquarters and requested that a blood test be performed upon Martin quickly (at the hospital). A state trooper from nearby Troop F was sent to Lincoln General, where he spoke with Martin and obtained a blood test.

While investigating the accident, Nugent kept in contact with his headquarters. He identified Martin’s Dodge truck as Vehicle # 1. Later, after leaving the scene, he contacted headquarters with a correction, stating that “vehicle # 1 is Jr. not Sr.

Following the usual protocol for accidents resulting in a fatality, the State Police assembled a report and made it available to the press. This report is constructed from information obtained from the reporting officers, dispatchers, vehicle registration information, and computer generated driver’s license information (in this case, there were two licenses retrieved from police computer records— one for the younger Martin and one for the elder Martin). The report named John K. Martin, Jr. as the driver of the pick-up truck. Although no one is certain how the driver came to be identified in the report as John K. Martin, Jr., there is speculation that the “Jr.” was picked up from Tpr. Nugent’s last call stating that vehicle # 1 was a junior, not senior. At trial, Nugent did not recall making the call, but stated that, because the message immediately prior to this one concerned Jimmy Griffin, he believed that the message was referring to the deceased, Jimmy Griffin, Jr., the passenger in vehicle # 1.

The report was compiled at headquarters by Sergeant Ronnie Dowden. Dow-den listed John K. Martin, Jr. as the driver of the Dodge pick-up. He stated that he got his information from the radio dispatcher who wrote down the information as it was radioed in from the accident scene. From this report, Trooper Scott Moreau prepared a news release, which went to the local media outlets. The report was broadcast on Shreveport and Alexandria TV news stations, the Shreveport Times, the Alexandria Town Talk, and the Monroe News-Star.

Trooper Nugent unsuccessfully tried to contact John K. Martin, Jr. several times during the days following the accident but was unsuccessful. On December 6, 2007, Chris Bowman, attorney for Kelly Martin, sent Nugent a letter declining an interview with Kelly Martin. The following day suit was filed against the Louisiana Department of Public Safety, Office of State Police (“State Police”).

The matter went to trial on January 18, 2011. The plaintiff testified regarding his embarrassment caused by the report. He had just returned from a Houston hospital after undergoing colon cancer surgery when the accident was reported. He notes that many fellow church members who had prayed for him and supported him in his battle with cancer heard the accident report. He also claims that the report caused him to lose some of his timber business from people no longer wanting to do business with him.

After the State presented the evidence summarized above, the court noted that the State Police had available the means of ascertaining the correct identity of the person driving the Dodge pick-up, but that it failed to do so. The court found the State liable for defamation. Regarding damages, the court took the matter under advisement and ordered the parties to submit briefs.

In due course, the plaintiff filed a motion for new trial on the issue of damages. Meanwhile, Judge Derr returned to the bench, granted the motion, and awarded $10,000 in damages.

This appeal followed.

Discussion

Defamation is a tort involving the invasion of a person’s interest in his or her reputation and good name. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669; Costello v. Hardy, 03-1146 (La.1/21/04); Bradford v. Judson, 44,092 (La.App. 2 Cir. 5/6/09), 12 So.3d 974. The four elements necessary to establish a claim for defamation are: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) by the publisher; and (4) resulting injury. Id. Fault in defamation claims is generally established by a showing of actual or implied malice. Id.

In Louisiana, defamatory words have traditionally been divided into two categories. Kennedy, supra; Bradford, supra. First, words that are defamatory per se are those which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances. When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Injury may also be presumed. The second type are words that are susceptible of a defamatory meaning. In that case, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault) and injury. Kennedy, supra.

As discussed in Kennedy, supra, in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held that the First Amendment prohibits a public official from recovering damages arising from a defamatory falsehood published concerning his or her official conduct unless the public official proved that statement was made with “actual malice,” i.e., a statement known to be false or a statement made with reckless disregard of whether it was false or not. Traditional rules of defamation had imposed strict liability on the publisher of a defamatory statement which later proved to be false, regardless of whether the publisher had carefully checked the accuracy of the statement and reasonably believed it to be true. To avoid the chilling effect on constitutionally valuable speech and debate, the New York Times decision not only imposed the requirement of a high degree of fault in defamation actions brought by public officials, but also shifted the burden of proof of fault to the public official plaintiff whose burden was to establish “actual malice” by clear and convincing evidence. Kennedy, supra. To prove “actual malice,” a plaintiff must demonstrate with clear and convincing evidence that the defendant realized that her statement was false or that she subjectively entertained serious doubt as to the truth of the statement.

These constitutional protections were extended to public figures when the defamatory statements related to issues of public concern. A public figure was defined as a nonpublie official who was intimately involved in the resolution of an important public question. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), this protection was extended to communications concerning public or general concern regardless of whether the person involved was famous or anonymous. Kennedy, supra; Bradford, supra.

In Kennedy, supra, Kennedy, a college student, sued a fast food vendor and the East Baton Rouge Parish Sheriff when he was detained, cuffed and taken to a substation while deputies determined whether a $100 bill he tendered for food was counterfeit. An employee had notified law enforcement, reporting the bill was suspected to be counterfeit. The bill was genuine and Kennedy was released and his money was returned. Kennedy, a nonpublic plaintiff, sued a nonmedia defendant (a fast food vendor) concerning speech that was of public concern (a report to law enforcement of suspected criminal activity). In Louisiana, the extended constitutional protections apply to media and nonmedia defendants alike. See Kennedy discussion, supra at pp. 9-11, 935 So.2d at pp. 677-679.

The Kennedy court found that when a private individual sues a nonmedia defendant over a defamatory statement about a matter of public concern, the claimant must establish malice, or fault, defined as a lack of a reasonable belief in the truth of the statement giving rise to the defamation. Kennedy, supra. The court applied the standard set out in Restatement (Second) of Torts § 580(B) to a defamatory statement concerning a private person (or a public figure in relation to a private matter not affecting his public capacity). Such a statement is subject to liability only if, the defendant (1) knows the statement is false and defamatory; (2) acts in reckless disregard of these matters; and (3) acts negligently in failing to ascertain them. Thus, to succeed, Kennedy had the burden of proving (1) a false and defamatory statement; (2) an unprivileged publication to a third party; (3) negligence, as defined in Restatement (Second) of Torts § 580(B); and (4) resulting injury. If any one of those elements was absent, the cause of action failed.

Privilege is a defense to a defamation claim in Louisiana. The encouragement of free communication of views in particular circumstances without incurring liability for defamation is a matter of public policy. An absolute privilege exists for limited situations such as statements by judges and legislators in judicial or legislative proceedings. See, e.g., La. R.S. 14:50.

A conditional or qualified privilege arises in situations in which the person’s interest is regarded as sufficiently important to justify some latitude for making mistakes so that publication of the defamatory statement is conditionally privileged. Impossible to precisely define, a conditional privilege has been described as containing these elements: good faith, an interest to be upheld, and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner and to proper parties only. Kennedy, supra.

A strong public policy exists in favor of a conditional or qualified privilege being extended to reports to law enforcement of alleged wrongful acts to protect the public. Therefore, there is no civil liability imposed on a citizen for inaccurately reporting criminal misconduct with no intent to mislead. The fast food employee reported a matter of public interest to the proper authorities who had a duty to investigate. Kennedy, supra. A qualified privilege also extends to the fair reporting of investigations or arrests. Crawford, 12 Louisiana Civil Law Treatise, § 17:11.

A conditional privilege may be defeated if the offended person proves that privilege was abused. Abuse is shown if the offended person establishes that the publisher knew the statement to be false or acted in reckless disregard to the statement’s truth or falsity. Recklessness requires a plaintiff to establish that the publication was deliberately falsified, or published despite the publisher’s awareness of probable falsity. Curtis Publishing Co. v. Butts, supra. Mere negligence concerning falsity (or lack of reasonable grounds for believing the statement is true) is not sufficient to prove abuse of a conditional privilege which requires proof of knowledge of falsity or reckless disregard as to falsity. Kennedy, supra.

Discretionary Acts Immunity

By its first assignment of error, the State contends that the trial court erred in finding it liable to the plaintiff for defamation. It maintains that the State Police have immunity under La. R.S. 9:2798.1, 1.e., the so-called “discretionary acts” immunity granted to governmental officials and public entities for certain policymak-ing and discretionary acts. Alternatively, the defendant claims that it is protected from liability by the conditional or qualified privilege provided under La. R.S. 14:49(2)(A), which requires a showing of actual malice regarding a defamatory statement. The evidence in this case, it argues, proves that the State Police lacked any malice.

The plaintiff argues that La. R.S. 9:2798.1 does not apply in this case because the inaccurate report constituted “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct,” which is exempted under R.S. 9:2798.1(0(2).

In Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, the Louisiana Supreme Court provided a two-step test to determine whether the indiscretionary acts exception under this statute applies to a specific set of circumstances:

A court must first consider whether the government employee had an element of choice. “[T]he discretionary function exception will not apply when a [... ] statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.” If the employee had no discretion or choice as to appropriate conduct, there is no immunity. When discretion is involved, the court must then determine whether that discretion is the kind which is shielded by the exception that is one grounded in social, economic or political policy. If the action is not based on public policy, the government is liable for any negligence, because the exception insulates the government from liability only if the challenged action involves the permissible exercise of a policy judgment.

In this instance, the duties of law enforcement agencies and employees regarding investigation of and gathering information from the driver of a vehicle involved in an accident as well as reporting that information to news-gathering agencies is statutorily provided for in La. R.S. 32:398. The State Police and its employee, Tpr. Nugent, had a statutory duty to investígate the highway accident and to obtain the information of those parties involved in the accident. Trooper Nugent investigated the accident as required by the statute. He was unable to obtain the driver’s license of the driver of the pick-up truck, but relied upon the work of Deputy Hines, who identified John Martin as the driver of the vehicle and whom Hines said he personally knew. Trooper Nugent took possession of the vehicle registration certificate which named “John K. Martin, Sr.” as the registered owner of the vehicle.

Thus, while defendant correctly contends that investigating and reporting accidents to the public is part of its public duty function, and Tpr. Nugent was acting pursuant to his investigative duties as a law enforcement officer in this case, because investigating and reporting accidents is a non-discretionary statutory duty of law enforcement, we find it does not qualify as a discretionary act subject to the immunity provisions of La. R.S. 9:2798.1. Hardy v. Bowie, supra.

Qualified Privilege

Alternatively, the state argues that publication of an errant comment regarding public affairs that was reasonably believed to be true is protected by qualified immunity under La. R.S. 14:49(2)(a). This statute along with sections 47, 48, and 50 of Title 14 of the Revised Statutes are in the Criminal Code, and pertain to defamation as a criminal offense. “Criminal statutes are not, in and of themselves, definitive of civil liability and do not set the rule for civil liability; but they may be guidelines for the court in fixing civil liability.” Gugliuzza v. K.C.M.C., Inc., 92-C-0796 (La.10/19/92), 606 So.2d 790; Laird v. Travelers Ins. Co., 268 La. 199, 267 So.2d 714, 717 (1972). In determining the existence of a civil duty, the inquiry must focus on whether the statute was intended to protect a particular plaintiff from the type of harm which ensued. Gugliuzza, supra. Defamation is a quasi-offense and as such is governed by Louisiana Civil Code Art. 2315, relating to liability for an act causing damage. Nevertheless, the defense of privilege has long been recognized in both criminal and civil proceedings for defamation. State v. Lambert, 188 La. 968, 178 So. 508 (1938); See, Kennedy, supra.

Following the criteria set out by the supreme court in Kennedy, supra, to prevail in this defamation action, the plaintiff must show that there was an abusé of that conditional or qualified privilege enjoyed by police in their investigation and reporting of events of public interest. To prove abuse, Mr. Martin, Jr. was required to show that the state troopers knew that their report disseminated to the news media naming John K. Martin, Jr. (W/M 37 years) was false or that they acted with reckless disregard to the truth or falsity of the report naming John K Martin, Jr. as the driver of the pick-up truck. To establish recklessness is very difficult, since the complaining person must show the publication was deliberately falsified or was communicated despite the publisher’s awareness of probable falsity.

We review the factual findings of the trial court under the manifest error standard, and legal conclusions made by the trial court for error of law.

At the conclusion of the evidence, the trial court ruled from the bench, briefly reviewing the evidence. It noted that the information publicized was a matter of public interest, but that publishers should make sure that their information is accurate. It noted that Tpr. Nugent’s report did not contain a reference to John K. Martin, Jr., age 37. The blood test taken the night of the accident identified the driver as John K. Martin, Sr. There were other documents that referred to John K. Martin, Sr.; however, the two driver’s licenses of both Martins were in the file, both having been pulled from state records. The court concluded that someone in a hurry to get the matter publicized inserted John K. Martin, Jr. into the appropriate report blank, even though his driver’s license does not contain the suffix, “Jr.,” with his name. It concluded that this was “almost gross negligence not to determine who, uh, the correct person was here.” It concluded that the state was liable.

The only part of the trial court’s reasons for judgment that indicate that it might have considered the qualified or conditional privilege defense raised by the state was the initial statement by the court that publication of the report was a matter of public interest. We are unable to ascertain from this statement whether the court was referring to the immunity conferred by La. R.S. 9:2798.1 or the qualified privilege recognized by our constitutional and tort jurisprudence discussed above. The evidence in this case indicates that the mistake was very likely a clerical error, given the fact that the driver and the plaintiff have the same name, except for the suffix, which was not on several documents, the fatality victim in the accident was a “Jr.,” and the radio communication from Tpr. Nugent in which he said “vehi-ele # 1 was a junior,” coupled with the urgency with which these reports are made. The error is at most, simple inadvertence or negligence, but certainly not rising to the level of recklessness required to show abuse of privilege in order to defeat the qualified privilege afforded to the defendant in this case. Kennedy, supra.

We therefore conclude that the trial court erred as a matter of law in not applying the qualified privilege to the circumstances in this case, and it was clearly wrong in not finding that the plaintiff failed to show that the defendant abused the privilege in this case.

This conclusion obviates the need for consideration of the remaining assignments of error related to damages.

CONCLUSION

Accordingly, the judgment of the trial court finding the State liable for defamation is reversed, and the award of damages to the plaintiff is vacated and set aside. We render judgment in favor of the defendant, State of Louisiana, Department of Public Safety and Corrections, Office of State Police, dismissing all claims at plaintiffs cost.

REVERSED AND RENDERED.

      . Before a written judgment awarding damages was rendered, the trial judge, Judge Derr, became ill and had to take a leave of absence. Retired Supreme Court Justice Joe Bleich was assigned by the Supreme Court as judge pro tempore to assist with the district court’s docket. Judge Bleich rendered judgment in the case, following Judge Derr's ruling on liability and awarding $3000 in damages.

      . The pertinent sections of La. R.S. 32:398 state:
      A. The driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage in excess of five hundred dollars shall:
      (1) Immediately ... give notice of the accident to the local police department if the accident occurs within an incorporated city or town or, if the accident occurs outside of an incorporated city or town, to the nearest sheriff's office or state police station.
      (2) Give his name, address, and the registration number of the vehicle he was driving and, upon request and if available, exhibit his license or permit to drive to any person injured in such accident or to the driver or occupant of or person attending any vehicle or other property damaged in the accident.
      (3) Give such information and, upon request, exhibit such license or permit to any police officer at the scene of the accident or who is investigating the accident.

      D. It shall be the duty of the state police or the sheriff's office to investigate all accidents required to be reported by this Section when the accident occurs outside the corporate limits of a city or town.... Every law enforcement officer who investigates an accident, as required by this Subsection, shall instruct the driver of each vehicle involved in the accident to report the following to all parties suffering injury or property damage as an apparent result of the accident:
      (1) The name and address of the owner and the driver of the vehicle.
      (2) The license number of the vehicle.
      (3) The name of the liability carrier for the vehicle, the name, address, and telephone number of the insurance agent who procured the liability policy providing coverage for the vehicle.

      K. (l)(a) The reports required by this Section, and the information contained in the reports, shall be confidential, shall be exempt from the provisions of R.S. 44:1 et seq., and shall be made available only: to the parties to the accident, parents or guardians of a minor who is a party to the accident, and insurers of any party which is the subject of the report; to the succession representatives of those parties, or to the attorneys of the parties or succession representatives; or to a news-gathering organization that requests documents related to the accident. Upon request, accident reports shall be made available to the above-enumerated persons within seven working days following the completion of the accident investigation. For the purposes of this Subsection: “news-gathering organization” means any of the following:
      (i) A newspaper, or news publication, printed or electronic, of current news and intelligence of varied, broad, and general public interest, having been published for a minimum of one year and that can provide documentation of membership in a statewide or national press association, as represented by an employee thereof who can provide documentation of his employment with the newspaper, wire service, or news publication.
      (ii) A radio broadcast station, television broadcast station, cable television operator, or wire service as represented by an employee thereof who can provide documentation of his employment.


source: Caselaw Access Project

author: HARRISON, Judge Pro Tem.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jonathan Michael TESTON, Appellant.
    No. 47,651-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Beth Fontenot, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Andrew C. Jacobs, Assistant District Attorneys, for Appellee.

      Before BROWN, SEXTON (Pro Tempore), and HARRISON (Pro Tempore), JJ.
   HARRISON, Judge Pro Tem.

The defendant, Jonathan Michael Te-sten, was originally charged by grand jury indictment with three counts of aggravated rape. Pursuant to a plea agreement, he pled guilty to three counts of sexual battery. He was sentenced to serve 10 years at hard labor, without benefit of parole, probation, or suspension of sentence on all three counts, with the sentences to be served concurrently. The defendant was granted an out-of-time appeal and now argues that the trial court lacked jurisdiction because the defendant was a juvenile at the time of the offenses and that the sentences imposed are excessive. For the following reasons, we affirm the convictions and sentences.

FACTS

On May 4, 2009, the defendant was indicted by a Bossier Parish grand jury for three counts of aggravated rape. The indictment was based upon events which occurred between March 1 and April 2, 2009, when the defendant was living with a couple the court loosely termed his “foster parents.” The defendant was 16 years old at the time of the offenses. The victims were two children living in the household who were under the age of 13.

On April 27, 2010, the defendant appeared in court and the prosecution filed a bill of information charging him with three counts of sexual battery. The defendant entered a plea of guilty to the charges outlined in the bill of information.

The trial court noted that the defendant was 17 years old at the time of the guilty plea. He was informed of the sentencing range for sexual battery. The trial court explained to the defendant his right to trial by jury, right of confrontation, and right against compulsory self-incrimination. Upon questioning by the trial court, the defendant stated that he was pleading guilty because he was, in fact, guilty. The prosecution recited the facts upon which the charges were based. The trial court found that the defendant knowingly and intelligently waived his rights and the court accepted the guilty plea. At that point, the original indictment against the defendant was nol-prossed.

The defendant appeared before the trial court for sentencing on July 7, 2010. He was ordered to serve 10 years at hard labor on each of the three counts of sexual battery, without benefit of parole, probation, or suspension of sentence. The sentences were ordered to be served concurrently. The defendant was given credit for time served and was correctly informed of the time limits for appealing his sentence and for applying for post conviction relief (“PCR”).

On November 7, 2011, the defendant filed a PCR application and requested an out-of-time appeal in the trial court claiming that his guilty plea was not knowingly and intelligently made, that he was denied effective assistance of counsel, and that his sentences were excessive. The defendant requested an error patent review, asserted that his attorney failed to notify him of his right to appeal, and claimed that he was entitled to an out-of-time appeal.

On January 4, 2012, the trial court denied the plaintiffs PCR claims. The defendant filed a writ application to this court raising only the claim |sthat he was denied an out-of-time appeal. On March 23, 2012, this court granted the writ application and remanded the matter to the trial court for further proceedings to determine whether the applicant should be granted an out-of-time appeal in accordance with State v. Counterman, 475 So.2d 336 (La.1985).

On May 1, 2012, the trial court held a hearing on the issue of whether the defendant should be granted an out-of-time appeal. The prosecution did not oppose the defendant’s request for an out-of-time appeal. The trial court granted the appeal and appointed the Louisiana Appellate Project to represent the defendant.

JURISDICTION

The defendant claims on appeal that, based on the bill of information in the record before this court, the adult criminal court had no jurisdiction over the defendant, who was a juvenile. The defendant argues that he was 16 years old at the time of the offenses and would only be subject to the jurisdiction of the adult criminal court if he was charged with one of the offenses enumerated in La. Ch. C. art. 305, or was transferred to the adult court after being charged with one of the offenses set forth in La. Ch. C. art. 857. The defendant alleges that the only bill of information in this record charges him with three counts of sexual battery and that offense is not one of the crimes listed in La. Ch. C. art. 305 or 857. Therefore, the defendant argues that he remained under the exclusive jurisdiction of the juvenile court. He claims that the adult criminal court that accepted his guilty plea and imposed sentence did not have jurisdiction and the proceedings are absolutely null. He urges that he should be remanded to the jurisdiction of the juvenile court. This argument is without merit.

Legal Principles

La. Ch. C. art. 305 provides in pertinent part:

A. (1) When a child is fifteen years of age or older at the time of the commission of first degree murder, second degree murder, aggravated rape, or aggravated kidnapping, he is subject to the exclusive jurisdiction of the juvenile court until either:
(a) An indictment charging one of these offenses is returned.
(b) The juvenile court holds a continued custody hearing pursuant to Articles 819 and 820 and finds probable cause that he committed one of these offenses, whichever occurs first. During this hearing, when the child is charged with aggravated rape, the court shall inform him that if convicted he shall register as a sex offender for life, pursuant to Chapter 3-B of Title 15 of the Louisiana Revised Statutes of 1950.
(2) Thereafter, the child is subject to the exclusive jurisdiction of the appropriate court exercising criminal jurisdiction for all subsequent procedures, including the review of bail applications, and the child shall be transferred forthwith to the appropriate adult facility for detention prior to his trial as an adult.
D. The court exercising criminal jurisdiction shall retain jurisdiction over the child’s case, even though he pleads guilty to or is convicted of a lesser included offense. A plea to or conviction of a lesser included offense shall not revest jurisdiction in the court exercising juvenile jurisdiction over such a child.

La. Ch. C. art. 857 states in pertinent part:

A. The court on its own motion or on motion of the district attorney may conduct a hearing to consider whether to transfer a child for prosecution to the appropriate court exercising criminal jurisdiction if a delinquency petition has been filed which alleges that a child who is fourteen years of age or older at the time of the commission of the alleged offense but is not otherwise subject to the original jurisdiction of a court exercising criminal jurisdiction has committed any one or more of the following crimes:
(4) Aggravated rape.

Discussion

In its brief to this court, the prosecution argued that the defendant was originally indicted by the Bossier Parish grand jury for three counts of aggravated rape under docket number 171,938. When the defendant appeared before the trial court to enter a guilty plea, the prosecution filed what amounted to an amended bill of information charging the defendant with three counts of sexual battery under docket number 171,938A. Following the entry of the guilty plea, the prosecution stated that the original charge was nol-prossed and specified that was “the one without the ‘A’ on it.” On appeal, this court was furnished only with the transcripts and pleadings associated with docket number 171,-938A.

In accordance with La. C. Cr. P. art. 914.1(D), we ordered that the appellate record be supplemented with the original grand jury indictment in this case. That document charged the defendant with three counts of aggravated rape, which is one of the crimes enumerated in La. Ch. C. art. 305(A). It is clear that this indictment is part of the record in this case and, when filed, divested the juvenile court of jurisdiction in this matter and vested jurisdiction in the district court.

As set forth in La. Ch. C. art. 305(D), the court exercising criminal jurisdiction shall retain jurisdiction over the child’s case, even though he pleads guilty to or is convicted of a lesser included offense. A plea or conviction of a lesser included offense shall not revest jurisdiction in the court exercising juvenile jurisdiction over such a child. In this case, the district court properly had jurisdiction over the defendant by virtue of the grand jury indictment charging three counts of aggravated rape, and retained jurisdiction to accept the guilty plea to three counts of sexual battery, a responsive verdict to aggravated rape under La. C. Cr. P. art. 814.

We note that in this matter, the prosecution, in effect, filed an amended bill of information charging the defendant with three counts of sexual battery. La. C. Cr. P. art. 558 provides that the defendant, with the consent of the district attorney, may plead guilty to a lesser offense that is included in the offense charged in the indictment. La. C. Cr. P. art. 487, dealing with the amendment of indictments, provides that nothing in the article shall be construed to prohibit the defendant from entering a plea of guilty to a crime nonre-sponsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered.

Here the defendant was originally charged with three counts of aggravated rape but pled guilty to the responsive verdict of three counts of sexual battery. The prosecution was not required to amend the charges against the defendant. Although the prosecution filed what was essentially an amended bill of information, it is clear that the prosecution did not intend to bring a new prosecution against the defendant, but merely sought to amend the indictment. The district attorney is inherently empowered to amend an indictment in open court to charge the defendant with an offense responsive to the original charges. See State v. Storms, 406 So.2d 135 (La.1981). After filing the amended bill of information and after the defendant entered his plea of guilty to the charges, the prosecution was then nol-prossed. Under this scenario, the district court had jurisdiction to accept the guilty plea in this case.

EXCESSIVE SENTENCE

The defendant claims that the sentences imposed upon him are excessive. He contends that the trial court erred in imposing the maximum sentences without articulating specific aggravating factors to show that he is the most egregious of offenders and deserving of the maximum sentences. This argument is without merit.

Legal Principles

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Cotton, 42,509 (La.App.2d Cir.9/19/07), 965 So.2d 1016, writ denied, 2007-2070 (La.3/7/08), 977 So.2d 898. In tailoring the sentence to the individual, the important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Cotton, supra.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Bradford, supra; State v. Cotton, supra.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders. State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Elmore, 46,833 (La.App.2d Cir.12/14/11), 80 So.3d 731, writ denied, 2012-0006 (La.4/27/12), 86 So.3d 627.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Cotton, supra.

Discussion

Prior to sentencing the defendant, the court ordered a presentence investigation (“PSI”) report. In sentencing the defendant, the court stated that it had reviewed the PSI report and had read a letter written to the court by the defendant as well as letters submitted by the families of the victims. The trial court found that the blame for the offenses lay at a lot of people’s feet, but one major blame rested with the defendant and the protection of the children. The court recognized that the defendant was “perhaps fifteen turning sixteen” at the time the offenses occurred and was 17 years old at the time of sentencing. The defendant’s counsel asked the court to consider the defendant’s youth, his terrible home situation, and the fact that the defendant was willing to testify against an adult who was living in the house who was also allegedly molesting the children. The court noted that the defendant had an unstable childhood and his parents divorced when he was three years old. There was evidence that the stepfather abused the defendant’s mother. The defendant was expelled from school, had not obtained a GED, and had a juvenile record. He was a first felony offender.

The trial court noted that the defendant admitted using marijuana and alcohol on a frequent basis and he had caused problems while incarcerated.

The trial court stated that it had examined the seriousness of the offenses and found that any lesser sentences than those imposed would take away from the seriousness of the offenses. The trial court stated that the only break it intended to give the defendant was to impose the sentences concurrently so that at some point in time the defendant will be eligible to move forward.

Given the circumstances of this case and the fact that the defendant received the benefit of a plea agreement whereby the charges against him were reduced, we find that the trial court did not abuse its discretion in the sentences imposed. The sentences are not so grossly disproportionate to the severity of the offenses as to shock the sense of justice.

CONCLUSION

For the reasons stated above, we affirm the convictions and sentences of the defendant, Jonathan Michael Teston.

AFFIRMED.

      . La. C. Cr. P. art. 914.1(D) provides:
      The trial court or the appellate court may designate additional portions of the transcript of the proceedings which it feels are necessary for full and fair review of the assignment of errors.


author: SEXTON, Judge Pro Tern.

text:
    STATE of Louisiana, Appellee v. Floyd DENNIS, Appellant.
    No. 47,652-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Santi Parks, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tern.

As a result of a plea agreement, Defendant, Floyd Dennis, pled guilty to carnal knowledge of a juvenile, a violation of La. R.S. 14:80. He was subsequently sentenced to seven years’ imprisonment at hard labor; all but four years were suspended and Defendant was given credit for time served. Defendant was also given four years’ active supervised probation, with special conditions, to begin after his release. Defendant appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

The following facts were gleaned from the guilty plea hearing, the sentencing hearing and the presentence investigation (“PSI”) report. The Bossier City Police Department was contacted in reference to a sexual assault on a 14-year-old girl. The victim alleged that Defendant forced her to have sexual intercourse with him; Defendant contended the act was consensual. At the time of the incident, Defendant was 17 years old. He was initially charged with forcible rape, a violation of La. R.S. 14:42.1 A(l).

After reaching a plea agreement with the State, Defendant pled guilty to felony carnal knowledge of juvenile, a violation of La. R.S. 14:80. At the time of the offense, the victim was 14 years old and, as stated, Defendant was 17 years old; however, as a part of the plea agreement, there was a stipulation that the age difference between the victim and Defendant was four years or greater. There was no sentencing agreement. A PSI was ordered.

The PSI report indicated that the victim’s mother took her to the Willis-Knigh-ton Hospital emergency room on June 13, 2011. The victim reported that she had been raped by her sister’s boyfriend, known as “Shack or Shaq.” The -victim’s mother was away from the home at the time of the incident; and, in the mother’s absence, Defendant spent the night at the home with his girlfriend.

The victim stated she had been sleeping on a couch in the living room when she woke up to see Defendant pulling down her panties. The victim tried to push Defendant away, but he was too big and heavy. Defendant then proceeded to have sexual intercourse with the victim, against her will. The victim reported that it was painful, she was afraid and did not know what to do. When her mother returned, she told her what had happened and her mother took her to the emergency room.

Officers interviewed the victim’s sister, who was uncooperative and initially did not answer any questions. The sister eventually identified “Shaq” as Defendant. Defendant was questioned and initially denied having intercourse with the victim. He later changed his story and said the victim approached him about sex and that it was consensual. Defendant stated that they had sex twice and the victim told him it would be their secret.

The victim’s mother also provided a statement for the PSI report. She believes that Defendant “should serve some serious time. He knew what he was doing and that it was wrong. I don’t want him to do this to someone else.” The victim’s mother also stated that her daughter still suffers issues as a result of Defendant’s actions. She noted that her daughter was a virgin at the time of the incident and that she did not talk much about the incident; and, if she did, she would cry. According to the mother, the victim and her sister hardly speak to each other. Attempts at counseling have proved to be too expensive for the family due to transportation issues. Defendant’s statement in the PSI report is simply, “My girlfriend is pregnant. Will I be able to live with her?”

During the sentencing hearing, the trial judge noted the facts of the offense, as well as Defendant’s lack of criminal history. As noted by the judge, however, the PSI report indicates that Defendant admitted the existence of a record in Caddo Juvenile Court. Defendant attended school through the eighth grade and then attended an alternative school, but dropped out of that program. Defendant has no work history; and, when asked how he supported himself, he indicated that he sold drugs.

In reviewing the factors of La. C. Cr. P. art. 894.1, the trial court found that a lesser sentence would deprecate the seriousness of Defendant’s crime. The trial judge also noted that there were no grounds to justify or excuse Defendant’s criminal conduct. The trial court also noted that Defendant would likely respond affirmatively to probationary treatment after serving a period of incarceration.

As previously stated, the trial judge then sentenced Defendant to seven years’ imprisonment at hard labor with credit for time served, with all but four years of the sentence suspended. Defendant was placed on four years’ active probation following his release from incarceration. He was informed that he must comply with the conditions of probation as stated in La. C. Cr. P. art. 895, that he should not be involved in criminal activity and must report to his probation officer as directed. Additionally, Defendant was informed that he must comply with the registration and notification requirements for sex offenders. As additional conditions of probation, Defendant was ordered not to have contact with the victim or the victim’s family. Further, Defendant must enroll and complete a sex offender counseling program. Defendant was prohibited from residing in a residence where there would be minors present and was ordered to obtain a GED within the first year of his probation. He was informed that he would have to obtain and maintain full-time lawful employment. In addition, Defendant was ordered not to drink alcohol or use illegal drugs and he was advised that his probation included random alcohol and drug screens, as well as a $75 monthly supervision fee or perform community service in lieu of payment as deemed appropriate by Defendant’s probation officer.

The record does not indicate that a motion to reconsider sentence was filed with the trial court. This appeal by Defendant ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred by imposing an unconstitutionally harsh and excessive sentence.

Defendant argues that the sentence fails to provide him with an opportunity to be rehabilitated and re-enter society as a productive member. Defendant further argues that the sentence is excessive and nothing more than a purposeless and needless imposition of pain and suffering. We disagree.

When a defendant fails to timely file a La. C. Cr; P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164; State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

A trial court has broad discretion to sentence within the statutory limits. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

La. R.S. 14:80 D(l) provides, in pertinent part:

Whoever commits the crime of felony carnal knowledge of a juvenile shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.

La. R.S. 14:42.1 B provides:

Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole or suspension of sentence.

The record before us supports the constitutionality of Defendant’s sentence. Defendant received a significant sentencing benefit as a result of his plea agreement. His sentencing exposure was reduced from a maximum sentence of 40 years’ imprisonment (with a minimum of five years) to a maximum of 10 years’ imprisonment. While it is not necessary to review on a bare claim of constitutional excessiveness, it is noted that the trial court reviewed the appropriate factors, in accordance with La. C. Cr. P. art. 894.1, in determining Defendant’s sentence.

The trial court also considered the crime as well as the -victim’s impact statement given by the victim’s mother wherein she indicated that she believed that Defendant should receive a period of incarceration. Defendant had never held a job and admitted to selling drugs to support himself. Further, Defendant also admitted to having a juvenile record in Caddo Parish. Even considering Defendant’s first offender status, the sentence is appropriate under the facts and circumstances of this case. Given the seriousness of the offense, the impact on the victim and her family and the benefit of the plea bargain received by Defendant, the sentence does not shock the sense of justice, nor is it disproportionate to the severity of the offense. This assignment is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Floyd Dennis, are affirmed.

AFFIRMED.

      . The statute, La. R.S. 14:80, provides in pertinent part:
      A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender and when the difference between the age of the victim and the age of the offender is four years or greater. (Emphasis added.)


author: CARAWAY, J.

text:
    John ROBERTS, et ux., Plaintiffs-Appellants v. Don MARX, M.D., et al., Defendants-Appellees.
    No. 47,658-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.
    Rehearing Denied Feb. 21, 2013.

      Guerriero & Guerriero, Monroe, LA, by Jeffrey D. Guerriero, Wade L. House, for Appellants, John Roberts and Kim Roberts.
    Crawford & Ogg, Monroe, LA, by Brian E. Crawford, Ramsey L. Ogg, for Appel-lees, Don Marx M.D., & Louisiana Medical Mutual Insurance Co.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   CARAWAY, J.

In this medical malpractice action, plaintiff asserts that his surgeon was required to inform him prior to elective surgery of the surgeon’s own eye surgery which had occurred eight days earlier. The trial court granted summary judgment in favor of the defendant physician after determining that there existed no genuine issue of material fact regarding breach of the standard of care. We affirm.

Facts

On September 21, 2007, urologist, Dr. Don Marx, performed an elective vasectomy on John Roberts. The vasectomy procedure involves the separation of blood vessels from the vas which is then cauterized and tied off. Before performing the procedure on Roberts, Dr. Marx discussed possible risks and complications of the surgery which included bleeding, hematoma due to the involvement of blood vessels and epididymitis, the inflammation of the epididymis. According to Dr. Marx, the surgery was uneventful. In subsequent follow-up visits with Dr. Marx, however, Roberts reported swelling and tenderness of the left hemiscrotum. Ultimately an ultrasound showed that Roberts had a possible (due to the mass’s atypical appearance) hematoma, meaning bleeding in the scrotum from the surgery. Although Roberts denies this fact, Dr. Marx recalled that he discussed exploratory surgery or continued conservative treatment including bed rest, heat and elevation for resolution of the condition. Dr. Marx also prescribed antibiotics and anti-inflammatory medication to Roberts. According to Dr. Marx, it was Roberts who chose to wait on surgery.

On October 12, 2007, Roberts presented to Dr. Marx with a 102 degree temperature. Dr. Marx immediately admitted Roberts to the hospital after observing that the swelling had become “red and tender and was consistent with infection.” Dr. Marx performed follow-up surgery on Roberts on October 15 and discovered a staph infection which was drained, packed and left open. Roberts received two days of antibiotics and wound care and was returned to the operating room on October 17 for debridement of the wound and an epididymectomy. Roberts remained in the hospital until mid-November 2007. A final semen check on November 27, 2007 indicated that the procedure was successful.

It is undisputed that Dr. Marx had undergone retinal detachment repair surgery on September 13, 2007, after losing part of his visual field in his right eye the previous day. Before the event, Dr. Marx had 20/25 vision in his right eye and he wore glasses. The successful eye surgery was performed by ophthalmologist, Dr. Joseph Barron. The day after the surgery, Dr. Marx’s vision had improved to 20/100 in the right eye. Dr. Barron explained that this meant that Dr. Marx was seeing at 20 feet what a normal eye would see at 100 feet. On a subsequent visit on September 19, 2007, Dr. Marx complained of right eye irritation which Dr. Barron determined was caused by a suture that he trimmed. Dr. Marx’s vision had improved to 20/80 plus one (meaning Dr. Marx could read one letter on the 20/70 line) by this date. Dr. Marx did not work for a week after the surgery.

On September 24, 2007, Dr. Marx’s vision had improved to 20/70. Dr. Barron did not discuss Dr. Marx’s return to surgery with him because that was something he would have to decide on his own. He did not recall that Dr. Marx told him anything about his having trouble doing surgery. Dr. Barron indicated that if Dr. Marx had complained about this, he would have recommended that he use magnifying glasses which “would really help.” Dr. Barron placed Dr. Marx on no restriction other than exercising.

By his October 24, 2007 visit, Dr. Marx’s vision had improved to 20/30. Ultimately his corrective prescription was changed but Dr. Marx felt that his eyesight was “restored pretty closely to what I was seeing before surgery.” He did utilize a magnifying loupe to perform surgery, including Roberts’ surgery, the first week he returned to work because it made him feel comfortable.

Roberts submitted a complaint against Dr. Marx to a medical review panel which rendered an opinion favorable to Dr. Marx, finding that Dr. Marx had appropriately performed the vasectomy with Roberts’ consent to the material risks for the procedure. The panel concluded that Dr. Marx had no obligation to disclose to Roberts the prior eye surgery, that Dr. Marx had been released by his doctor to return to his medical practice, and that his actions met the applicable standard of care.

Subsequently, on November 17, 2010, Roberts filed this action seeking damages for his alleged failure to provide appropriate medical care and treatment relating to Dr. Marx’s impaired vision and treatment and diagnosis of the subsequent complications.

Dr. Marx and his insurer moved for summary judgment and included a copy of the medical review panel opinion in support of that motion. Copies of Roberts’ discovery responses which identified no medical doctor as an expert witness for the case were attached to the motion. In light of the medical review panel opinion that did not support plaintiffs claims and the lack of expert testimony to establish a breach of the standard of care, Dr. Marx argued that Roberts would be unable to sustain his burden of proof at trial.

Roberts opposed the summary judgment on the grounds that no expert testimony was required to prove lack of informed consent which occurred when Dr. Marx failed to inform Roberts of his vision problems prior to surgery. He also argued that contested issues of fact existed as to whether Dr. Marx informed him that he could have surgery when the hematoma was diagnosed. Roberts included his affidavit which stated that he would not have elected to have the vasectomy at that time if he had been advised of Dr. Marx’s eye surgery and that he was not given the choice of surgery by Dr. Marx when the hematoma was ultimately diagnosed. Roberts also contended that he overheard Dr. Marx’s nurse state that the physician had obtained the jeweler’s loupes he utilized from a flea market. Roberts also included the depositions of Drs. Barron and Marx which were consistent with the facts as set forth above.

After hearing the arguments of counsel and considering the memoranda and exhibits submitted by the parties, the trial court determined that no genuine issue of material fact existed and that Roberts had not shown that he could meet his burden at trial regarding the breach of the standard of care by Dr. Marx. This appeal by Roberts ensued.

Discussion

On appeal, Roberts argues that the trial court erred in finding that he could not carry his burden of proof that Dr. Marx failed to obtain his informed consent prior to surgery and in determining that the lack of expert testimony defeated his claims.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880; Duncan v. U.S.A.A. Ins. Co., 06-368 (La.11/29/06), 950 So.2d 544.

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha, supra; Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058; King v. Parish National Bank, 04-0337 (La.10/19/04), 885 So.2d 540.

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. Samaha, supra.

The burden of proof at the hearing on the motion for summary judgment is on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

The present motion for summary judgment was presented in the context of a suit for medical malpractice. To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794; Samaha, supra; Gleason v. Louisiana Dept. of Health & Hospitals, 44,947 (La.App.2d Cir.3/10/10), 33 So.3d 961, writ denied, 10-0783 (La.6/25/10), 38 So.3d 338. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha, supra; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228; Gleason, supra. In this type of medical malpractice action, expert testimony is also required to establish whether a breach of the standard of care caused injury to the plaintiff. Schultz v. Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002.

Louisiana’s informed consent law is contained in La. R.S 40:1299.40 and provides the standards for written consent to medical treatment in Louisiana. This law provides that the sole cause of action relating to informed consent sounds in negligence. Thibodeaux v. Jurgelsky, 04-2004 (La.3/11/05), 898 So.2d 299, writ denied, 04-2126 (La.6/17/05), 904 So.2d 707. The informed consent law also generally provides that a patient give written consent to a procedure only after being informed of any known and material risks. Thus, a doctor’s duty of disclosure to a patient includes only those risks that are material. Jackson v. State, 05-2021 (La.9/29/06), 938 So.2d 688. A risk is material when a reasonable person would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy. Brandt v. Engle, 00-3416 (La.6/29/01), 791 So.2d 614. The determination of materiality is a two-step process. The first step is to determine the nature and existence of the|srisk and the likelihood of its occurrence. The second step is for the trier of fact to determine whether the probability of that type of harm is a risk to which a reasonable person in the patient’s position probably would attach significance. Id. However, a plaintiff can only recover damages for a doctor’s failure to disclose a material risk only if causation is proven. Causation is established only if adequate disclosure reasonably would be expected to have caused a reasonable person to decline treatment because of the disclosure. Id.

A physician’s failure to disclose chronic alcohol abuse to patient and wife has been held to constitute a material risk associated with the physician’s ability to perform, which if disclosed would have obliged the patient to have elected another course of treatment. Hidding v. Williams, 578 So.2d 1192 (La.App. 5th Cir.1991).

The undisputed facts brought forth by Dr. Marx are (1) Roberts’ hematoma and related complications were known and material risks that might have been expected from the surgery, (2) Roberts was advised of the hematoma risk and consented to the surgery, and (3) Dr. Marx was released by his doctor to perform acts in his medical practice. There were other circumstances and their implications surrounding Dr. Marx’s actions that were not in any way disputed or called into question by Roberts. Dr. Marx’s slight deficiency in eyesight affected one eye and its effect on his near vision with the additional aid of the loupe magnification was not explained or shown to be inadequate by a defense expert. Additionally, the surgical objective of the vasectomy was not otherwise shown by Roberts to have been unsuccessful. Finally, Dr. Marx’s return to his normal practice by September 21 was not shown by Roberts to have caused any problems with his other patients’ care.

This direct and circumstantial evidence first required Roberts to bring forth evidence showing that the known hematoma risk, which by definition may be caused by the physician’s nonnegligent actions and has a probability generally associated with the surgery, was more probably caused in this case by Dr. Marx’s negligence. The slight circumstantial inference that Roberts urges because of the fact of Dr. Marx’s prior surgery does not in our opinion demonstrate such factual support for Roberts’ essential element of proof of causation so as to create a genuine issue of material fact.

Second, a physician’s inability to perform surgery because of his impaired physical condition is not a matter concerning informed consent of the patient but negligence of the physician. Here, Roberts did not produce evidence that showed that any slight vision impairment of Dr. Marx that may have existed at the time of Robert’s surgery was not otherwise corrected by Dr. Marx’s use of the loupe magnification. The expert testimony missing from Roberts’ opposition to the motion for summary judgment was necessary evidence to dispute Dr. Barron’s assessment of Dr. Marx’s ability to return to his medical practice.

Finally, although not presented to the medical review panel, Roberts insists that Dr. Marx was negligent in advising Roberts “to wait and see” after his complications developed instead of having immediate surgery for the hematoma. Leaving Dr. Marx’s contradictory testimony aside, this claim would have also required expert medical testimony to demonstrate that Roberts might be successful in proving such negligence at trial. Accordingly, Roberts has not raised a material issue of fact that Dr. Marx’s treatment for the hematoma fell below the standard of care.

Conclusion

For the foregoing reasons, the judgment of trial court is affirmed. Costs of this appeal are assessed to Roberts.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and DREW, JJ.

Rehearing denied.

      . In his opposition argument to the summary judgment, Roberts indicated that Dr. Marx admitted to him that he had made a mistake. Roberts’ affidavit, however, contains no such statement.

      . It is unclear from Dr. Barron's discussion of the deficiency in Dr. Marx's vision following his eye surgery whether the deficiency applied to his near or far vision, or both.


author: HARRISON, Judge Pro Tern.

text:
    George T. LUTHER and Jamie C. Luther, Plaintiffs-Appellees v. IOM COMPANY LLC (f/k/a Intra-Op Monitoring Services LLC), Dan Joachim M.D., John Partridge and Admiral Insurance Company, Defendants-Appellants.
    No. 47,667-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Hailey, McNamara, Hall, Larmann & Papale, L.L.P., by Michael J. Vondenstein, Metairie, LA, Ralph T. Rabalais, New Orleans, LA, Alayne R. Corcoran, Metairie, LA, for Defendan1>-Appellants Dan W. Joachim, M.D., and Intra-Op Monitoring Services, LLC.
    McNew, King, Mills, Burch, & Landry, L.L.P., by Brady D. King II, Monroe, LA, Nicholas Michael Graphia, for Third Party Defendant-Appellee The Patient’s Compensation Fund.
    John Partridge, Defendant-Appellee In Proper Person.
    Michael J. Mestayer, G. Gregory Green, for Plaintiffs-Appellees.
    Before DREW, LOLLEY and HARRISON (Pro Tempore), JJ.
   HARRISON, Judge Pro Tern.

The plaintiff contends that he suffered partial paralysis as the result of faulty monitoring by the defendants during surgery. The defendants appeal from a trial court decision granting summary judgment in favor of the Patient’s Compensation Fund (PCF), which withdrew its prior certification that these parties were qualified health care providers (QHCPs) under the Louisiana Medical Malpractice Act (MMA), La. R.S. 40:1299.41, et seq. The defendants also seek review of the trial court’s denial of their cross motion for summary judgment. For the reasons set forth below, we reverse the trial court’s granting of summary judgment in favor of the PCF and hereby grant summary judgment in favor of the defendants on the issue of the PCF coverage.

FACTS

On October 30, 2007, George Luther underwent fusion surgery on his back at St. Francis Medical Center in Monroe, Louisiana. The surgery was performed by Dr. Gerald Molloy. IOM Company, LLC (f/ k/a Intra-Op Monitoring Services, LLC), provided two employees to monitor the surgery — technician John Partridge, who was in the surgical theater, and Dr. Dan W. Joachim, who remotely monitored from IOM’s office in Covington, Louisiana. A second surgery to remove a screw and attempt to refix the fusion was performed on November 1, 2007. Subsequently, Mr. Luther suffered partial paralysis.

Mr. Luther filed a petition for a medical review panel against St. Francis Medical Center and Dr. Molloy in October 2008. During Dr. Molloy’s deposition on June 29, 2009, facts were developed suggesting that IOM and its employees were negligent in their monitoring of the patient’s neurological functions during the October 2007 surgery and that they failed to advise Dr. Molloy of salient facts which might have altered the surgical results. An amended petition for a medical review panel was filed in July 2009, to add IOM and Dr. Joachim.

In a letter dated July 7, 2009, the PCF certified that IOM and Dr. Joachim were QHCPs under the MMA. (However, in this letter, the Oversight Board reserved the right to revise its qualification and coverage determination upon receipt of additional information.) Following the certification of qualification, Mr. Luther and IOM entered into a voluntary settlement of the dispute on August 11, 2010. In exchange for $100,000, Mr. Luther agreed to release IOM with the understanding that if damages exceeded that amount, he would proceed against the PCF for the balance.

On August 17, 2010, after the Oversight Board received a copy of a petition for approval of settlement, it asserted that their earlier certification was in error and that IOM and Dr. Joachim were not QHCPs.

On October 15, 2010, Mr. Luther and his wife filed suit for damages arising from the surgical procedure against IOM, Dr. Joachim, Mr. Partridge, and Admiral Insurance Company, IOM’s insurer.

In January 2011, IOM and Dr. Joachim filed a dilatory exception of prematurity and a third-party demand. The claim of prematurity was based upon the failure to first present the claim against them to a medical review panel. They also filed a third-party demand against the PCF on the basis of its unexplained reversal of their qualification as health care providers. The PCF responded by filing a dilatory exception of vagueness and a declinatory exception of failure to state a cause of action. Thereafter, IOM and Dr. Joachim filed an amended third-party demand against the PCF and its Oversight Board wherein they asserted that the only relief sought in their third-party demand was a declaration by the court that they are QHCPs within the meaning of the MMA.

In July 2011, the PCF filed a motion for summary judgment in which it asserted that it was entitled to a declaration that neither IOM nor Dr. Joachim was a QHCP. In support of its motion, PCF submitted the affidavit of Susan Gremil-lion, its supervisor of the surcharge section. As such, she supervised processing of health care providers’ applications for enrollment. According to her review of records, an application for IOM to be enrolled as a certified health care provider was received on November 16, 2007. She stated that no further correspondence was received until August 18, 2010, when PCF issued a certificate of enrollment which indicated that the first date of coverage was the date of receipt of the application, November 16, 2007. Ms. Gremillion stated that upon receipt of notice of Mr. Luther’s claim, the PCF issued a letter mistakenly giving notice of coverage; that notice provided that enrollment could be affected by additional information. Due to later inquiries, the PCF discovered that IOM was not enrolled until after the alleged date of malpractice in the instant case. As a result, Ms. Gremillion stated that IOM was not a QHCP for purposes of the subject claim.

In September 2011, IOM and Dr. Joa-chim filed a cross motion for summary judgment in which they argued that since they reasonably relied to their detriment upon the representations of the PCF that they were QHCPs, the PCF is equitably estopped from reversing its qualification determination. They argued that while the July 7, 2009, letter stated that additional information could lead to a revision of the qualification determination, the PCF has never acknowledged the receipt of any such additional information and has not timely responded to relevant discovery requests.

IOM and Dr. Joachim filed the corporate deposition of the PCF through Ms. Gremillion, as well as the deposition of Roderick Johnson, the chairman and CEO of IOM. Ms. Gremillion testified that as medical malpractice compliance director, she oversaw the panel office, which handles all of the incoming complaints, and the surcharge department, which handles the enrollment of health care providers who chose to enroll. She admitted that no additional information was received by the PCF after the initial determination, but that the settlement caused them to “take a second look.” Ms. Gremillion also clarified that, despite the wording of its letter that the Oversight Board reserved the right to revise its determination upon receipt of new information, it was the PCF that actually made these decisions.

Ms. Gremillion described the process by which a health care provider could become enrolled — providing proof of underlying coverage and paying a surcharge — and receive a certification document. There was proof of underlying coverage, but no surcharge payment for October 30, 2007, the date of the alleged malpractice. According to her, IOM never had a certificate of enrollment before October 30, 2007; however, Dr. Joachim had been previously enrolled individually “a few years prior to that time.” Furthermore, she stated that, due to a software problem, the computer system erroneously generated the letter stating they were covered. The error was apparently discovered after a certificate request in connection with the settlement proposal. She could not say whether the computer made any other similar mistakes.

In his deposition, Mr. Johnson testified that the number one factor considered by IOM in settling with the plaintiffs was the belief that they had PCF coverage. He stated that if they known otherwise, it would have affected their thought process about settling. Mr. Johnson testified that he became affiliated with IOM when it was purchased by a group of investors in September 2008. He was under the impression that all of the malpractice insurance was covered when the company was purchased. He conceded that he had not seen any documents proving that IOM was actually enrolled with the PCF on October 30, 2007, and he had no knowledge of IOM and Dr. Joachim applying for PCF coverage on November 16, 2007. However, he had no documents from the PCF saying that they were not QHCPs at the time they entered into the settlement.

Additionally, IOM and Dr. Joachim filed an opposition to the PCF’s motion for summary judgment. They contended that there was no new evidence or additional information to justify the PCF’s change of status and that a health care provider need not be “enrolled” to be qualified. The plaintiffs also filed an opposition to both motions for summary judgment.

A hearing was held on March 12, 2012, at which the matter was taken under advisement. A judgment of dismissal granting summary judgment in favor of the PCF was signed on April 12, 2012. The court found that IOM and Dr. Joachim were not QHCPs within the meaning of the MMA for the purposes of the claim brought by the plaintiffs arising on or about October 30, 2007. The third-party demand and amended third-party demand filed by IOM and Dr. Joachim were dismissed with full prejudice. The same judgment denied the motion for summary judgment filed by IOM and Dr. Joachim. Costs were assessed to IOM. On April 23, 2012, IOM and Dr. Joachim requested written reasons; however, none are found in this record.

IOM and Dr. Joachim appeal from the trial court judgment in its entirety.

LEGAL PRINCIPLES

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Palmer v. Martinez, supra.

Because this case involves cross motions for summary judgment, this court must determine whether either party has established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Gray v. American National Property & Casualty Co., 2007-1670 (La.2/26/08), 977 So.2d 839.

Patient’s Compensation Fund

The MMA confers upon QHCPs two major advantages in actions against them for malpractice. First, the liability of a QHCP for all injuries or death for any one patient may not exceed $100,000, and the total amount recoverable from all defendants (including the PCF) for all malpractice claims for injuries or death for any one patient, exclusive of future medical care and related benefits, may not exceed $500,000, plus interest and costs. La. R.S. 40:1299.42(B). Second, no action for malpractice against a QHCP or his insurer may be commenced in a court of law before the complaint has been presented to a medical review panel and the panel has rendered its expert opinion on the merits of the complaint, unless the parties agree to waive this requirement. La. R.S. 40:1299.47. See Bennett v. Krupkin, 2000-0023 (La.App. 1st Cir.3/28/02), 814 So.2d 681, 685, writ denied, 2002-1208 (La.6/21/02), 819 So.2d 338; Griffin v. Louisiana Patient’s Compensation Fund Oversight Board, 2004-0613 (La.App. 1st Cir.3/24/05), 907 So.2d 90, 92-93. See also LAC 37:111.503.

Health care providers may take advantage of these benefits only if they “qualify” under the MMA by meeting certain statutory requirements set forth in La. R.S. 40:1299.42(A). These benefits are bestowed on health care providers for as long as their malpractice liability insurance remains in force or while a self-insured health care provider’s security remains undiminished. La. R.S. 40:1299.45(A).

Pursuant to La. R.S. 40:1299.42(A), a QHCP is one who “(1) [files] with the board proof of financial responsibility as provided by Subsection E of this Section,” and “(2) [pays] the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.” Initial qualification of a self-insured healthcare provider is effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Initial qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge. La. R.S. 40:1299.42(A)(3).

The PCF is supported by annual surcharges levied against all QHCPs. La. R.S. 40:1299.44(A)(2)(a). These surcharges are collected on the same basis as premiums by each insurer, the risk manager, and surplus line agent. La. R.S. 40:1299.44(A)(2)(e).

In order to effectuate the provisions of the MMA, the PCF Oversight Board has the authority to adopt and promulgate necessary rules, regulations, and standards. La. R.S. 40:1299.44(D)(3). In furtherance of this aim, the Board promulgated LAC 37:111 with regard to enrollment in the Fund. Williams v. Louisiana Patients’ Compensation Fund Oversight Board, 2005-782 (La.App. 3d Cir.2/1/06), 921 So.2d 1168.

As to the issuance of certifications of enrollment, LAC 37:III.515(A) provides:

Upon receipt and approval of a completed application ... and payment of the applicable surcharge by or on behalf of the applicant health care provider, the executive director shall issue and deliver to the health care provider a certificate of enrollment with the fund, identifying the qualified health care provider and specifying the effective date and term of such enrollment and the scope of the fund’s coverage for that health care provider.

The timeliness of payment of surcharges is addressed in LAC 37:III.711(E), which states, in relevant part:

It is the purpose of § 711 that insurers and approved self-insurance trust funds remit surcharges collected from their insured providers to the board timely. The timeliness of surcharge remittances to the board by insurers and approved self-insurance trust funds shall not affect the effective date of fund coverage. However, the failure of insured health care providers to timely remit applicable surcharges to insurers and approved self-insurance trust funds for renewal may result in lapses of coverage with the fund. [Emphasis added.]

Equitable Estoppel

Equitable estoppel is a jurisprudential doctrine involving the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. MB Industries, LLC v. CNA Insurance Company, 2011-0303 (La.10/25/ll), 74 So.3d 1173; Blanchard v. ABC Insurance Company, 38,005 (La.App.2d Cir.3/3/04), 867 So.2d 901, writ denied, 2004-1101 (La.9/3/04), 882 So.2d 607. There are three elements required to establish equitable estoppel: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance. MB Industries, LLC v. CNA Insurance Company, supra.

Estoppel is not favored in our law. Blanchard v. ABC Insurance Company, supra. A party invoking the estop-pel doctrine must have exercised such diligence as would reasonably be expected under the prevailing circumstances to avoid mistake or misunderstanding. Holmes v. Jefferson Pilot Financial Insurance Company, 39,721 (La.App.2d Cir.6/29/05), 907 So.2d 185, writ denied, 2005-1985 (La.2/3/06), 922 So.2d 1185.

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. La. C.C. art. 1967.

DISCUSSION

The issue presented here is not whether IOM and Dr. Joachim were properly enrolled at the time of the alleged malpractice. It is whether the PCF can withdraw its certification that they were QHCPs after they relied upon that certification to enter into a settlement and when the PCF has not received any additional information since it issued the certificate.

IOM and Dr. Joachim argued that at the time of the alleged malpractice, they had the requisite insurance but were approximately two weeks late paying a surcharge to the PCF. Shortly after they were added as defendants, the PCF certified them as QHCPs in a letter which reserved its right to revise its qualification and coverage determinations upon receipt of additional information. They further argued that since the PCF had the discretion to waive late surcharge payments, they reasonably relied upon the certification and decided to settle instead of mounting a defense.

In Bramlet v. Lakeside Hospital, 96-15 (La.App. 5th Cir.6/25/96), 690 So.2d 63, the fifth circuit found that the PCF was equitably estopped from denying that the defendant hospital was a QHCP. There a petition for damages was filed against the hospital in September 1988. The Commissioner of Insurance initially issued a letter declaring' that the hospital was not a QHCP. However, in January 1989, the hospital was informed by letter that it was, in fact, a QHCP for purposes of the claim. In December 1994, the plaintiffs filed for judicial approval of a settlement with the hospital. The PCF then advised counsel for the hospital by letter that it was withdrawing its certification of the hospital as a QHCP for the claim. The PCF filed rules and exceptions objecting to the settlement. The trial court ruled in favor of the hospital, finding that it was a QHCP for the claim. The PCF appealed.

The fifth circuit affirmed the decision of the trial court. It enumerated the elements of equitable estoppel set forth by the Louisiana Supreme Court — (1) a representation by conduct or work; (2) justifiable reliance; and (3) a change of position to one’s detriment because of the reliance — and observed that the hospital had relied upon the PCF’s assertions that it was a QHCP for purposes of this claim. The court also cited La. C.C. Art. 1967. Furthermore, relying upon Steptore v. Masco Construction Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213, the court noted as illustrative that in an insurance claim, “when an insurer, with knowledge of facts indicating noncoverage under the insurance policy, assumes or continues the insured’s defense without obtaining a non-waiver agreement to reserve its coverage defense, the insurer waives such policy defense.”

The PCF attempts to distinguish Bramlet due to the greater length of time between its initial certification and its attempted reversal. However, we find no merit to this argument. Regardless of the amount of time, the fact remains that the appellants were certified by the PCF as QHCPs and that they relied upon this certification in entering into a settlement with the plaintiffs, just like the hospital in the Bramlet case.

In the letter accompanying its certification of qualification, the PCF reserved the right to reassess its determinations of qualification and coverage upon receipt of additional information. However, it concedes that it received no new information between the granting and the withdrawal of its certification of the appellants as QHCPs in the instant case. It attempts to blame the issuance of the certificate upon a “computer glitch.” However, inasmuch as the alleged mistake was made by PCF’s own computer system over which it had oversight and control, this argument must fail.

The PCF also contends that the appellants’ reliance upon the certification was unreasonable because they should have known that they were not qualified. However, the jurisprudence and the statutes indicate that the PCF has some discretion in determining whether a healthcare provider is qualified. See Bramlet v. Lakeside Hospital, supra; In Re Medical Review Proceedings, Jack Catalanotto v. Lifemark Hospitals of Louisiana, Inc., 94-403 (La.App. 5th Cir.12/14/94), 648 So.2d 970. The appellants were not unreasonable in relying upon the certification when the exercise of such discretion was vested in the PCF.

We find that summary judgment in favor of the PCF was not warranted in the instant matter. Accordingly, we reverse the trial court’s granting of the PCF’s motion for summary judgment.

Additionally, we find that the trial court erred in denying the appellants’ motion for summary judgment. We hereby grant summary judgment in favor of the appellants.

CONCLUSION

The decision of the trial court granting the Patient’s Compensation Fund’s motion for summary judgment is reversed.

We convert IOM and Dr. Joachim’s appeal of the denial of their cross motion for summary judgment to a writ application and grant the writ. Summary judgment is rendered in favor of IOM and Dr. Joachim, holding that the PCF is prohibited from withdrawing its certification that they are QHCPs for this claim.

Costs of this appeal are assessed to the appellee, Patient’s Compensation Fund. We remand the matter to the trial court for further proceedings.

REVERSED; WRIT GRANTED; JUDGMENT DENYING DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT REVERSED; JUDGMENT RENDERED IN DEFENDANTS’ FAVOR GRANTING MOTION.

      . While the actual certificate gives the enrollment period as beginning "11/15/2007,” the date on the affidavit appears to have been changed in ink to "November 16, 2007.”

      . The record indicates that Dr. Joachim had coverage in 2006.

      . To the extent that the appellants are seeking review of the denial of their cross motion for summary judgment, an interlocutory judgment, we exercise our supervisory jurisdiction to convert the appeal to a writ application. See Hood v. Cotter, 2008-0215, 2008-0237 (La.12/2/08), 5 So.3d 819.