author: AMY, Judge. COOKS, J.,

text:
    Harlton K. STANLEY, et al. v. CROWELL & OWENS, LLC.
    No. 13-1425.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 2014.
    Rehearing Denied July 23, 2014.

      Kenneth Michael Wright, Lake Charles, LA, for Plaintiffs/Appellants Harlton K. Stanley, Machal, LLC.
    Jimmy R. Faircloth, Jr., The Faircloth Law Group, LLC, Alexandria, LA, for Defendant/Appellee Crowell & Owens, LLC.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

12After the plaintiff developer filed suit seeking to have underlying attorney fee agreements declared null and void, the defendant law firm filed a reeonventional demand seeking enforcement of a promissory note entered into by the plaintiffs president and his wife. The defendant alleged that the promissory note reflected indebtedness for all sums due under the previous agreements. The plaintiff filed the initial petition seeking annulment of the underlying agreements and the promissory note, arguing that the note was unenforceable. The defendant law firm filed a reeonventional and third party demand and, ultimately, sought enforcement of the promissory note through a motion for summary judgment. The trial court granted the motion for summary judgment in the defendant law firm’s favor. The plaintiffs appeal. For the following reason, we affirm.

Factual and Procedural Background

Harlton K. Stanley, now deceased, and Machal, L.L.C., the limited liability corporation of which Mr. Stanley served as president, instituted the underlying matter in September 2011, seeking to have an engagement agreement with their attorneys, Crowell and Owens, L.L.C., declared null and void. The legal representation pertained to the plaintiffs’ development and management of the Jena Choctaw Pines Casino. In pertinent part, the plaintiffs alleged that the initial agreement violated Rule 1.8(a) of the Rules of Professional Conduct in its construction and anticipation of a contingency fee for the defendant law firm and that a subsequent assignment of that agreement was null and void for want of consideration.

|aIn turn, the defendant law firm filed a reconventional and third-party demand against Mr. Stanley and Stanley Holdings, L.L.C. Mrs. Carolyn Gay Chevallier Stanley was later substituted as a plaintiff in her capacity as the administrator of Mr. Stanley’s succession. In its demand, the defendant law firm sought recognition of the assignment of the engagement agreement. Through the April 2007 assignment, Mr. Stanley, Stanley Holdings, and Machal agreed to pay the law firm $750,000.00 on or before December 1, 2007, in partial payment of services rendered. In turn, the defendant law firm’s remaining contingency arrangement was reduced. In its demand, the defendant law firm contended that, despite the assignment of the agreement, no payment was made. In March 2011, Mr. and Mrs. Stanley entered into a promissory note, agreeing to pay the defendant law firm $989,375.00 plus interest. The stated purpose of the promissory note was to “satisfy all the rights, duties and obligations of the parties to that certain Agreement styled Assignment of Engagement Agreement dated April 25, 2007 by and between Stanley Holdings, L.L.C., H.K. Stanley, and Crowell and Owens, L.L.C.” In its reconventional and third party demand, the defendant law firm sought payment of the note.

Thereafter, the trial court denied a motion for summary judgment in which the plaintiffs sought recognition that the engagement agreement and the subsequent assignment of the agreement were null and void due to an alleged failure to follow the dictates of Rule 1.8(a) of the Rules of Professional Conduct. In opposition to the motion, the defendant law firm attached, in part, an August 2012 letter written by plaintiffs’ counsel to the Louisiana Attorney Disciplinary Board, alleging the violation of Rule 1.8. The defendant law firm further attached the January 2013 response letter from the Board’s Office of Disciplinary Counsel to counsel for the 14defendant law firm, reporting the Office’s dismissal of the complaint upon a “determination that there is not clear and convincing evidence to support the complainant’s allegations of unethical conduct against your client.” The trial court ultimately denied the plaintiffs’ motion for summary judgment in this regard.

Subsequently, the defendant law firm filed its own motion for summary judgment, seeking full payment on the promissory note. The defendant noted that no payments had been made under the promissory note, despite the opening of the gaming facility, causing Mr. and Mrs. Stanley to be in default under the note. Accordingly, the defendant law firm sought payment of the promissory note and attorney fees as permitted under the terms of the note. In support of the motion, the defendant law firm attached the engagement agreement, the assignment of engagement agreement, the promissory note, the defendant law firm’s demand letter to Mrs. Stanley for collection of the note, the deposition of Mr. Stanley, as well as the deposition of William Owens, a member/manager of the defendant law firm.

The plaintiffs opposed the motion for summary judgment, noting various pleadings in the history of the case and re-urging the Stanley and Owens depositions. The plaintiffs also submitted the affidavit of Mr. Stanley’s daughter who represented that her father had engaged another law firm to perform work that he felt his arrangement with the defendant should have covered. The plaintiffs argued that this documentation demonstrated that genuine issues of material fact existed “surrounding the validity of the Engagement Agreement, and whether the Succession and Ma-chal are entitled to offset against any claim of Crowell and Owens, LLC the sums paid to the firm of Gold, Weems, Bruser, Sues and Rundell for representation of the Stanley interests related to the Jena Casino project.”

|sFollowing a hearing, the trial court rendered summary judgment in favor of the defendant law firm against Mrs. Stanley, individually and as executor of Mr. Stanley’s succession, and also against Stanley Holdings, L.L.C. in the amount of $989,275.00 plus interest and attorney’s fees under the promissory note. It deferred the issue of the quantum of attorney fees until a later date.

The plaintiffs have appealed, asserting that the summary judgment was entered in error. Within that context, the plaintiffs question:

I. Whether the engagement agreement as amended provides a basis for the promissory note sued upon;
II. Whether the promissory note is sufficient evidence of the reasonableness of the attorney’s fees represented by the note;
III. Whether the Succession of Harlton Kenneth Stanley and Machal, LLC are entitled to a credit or offset for the sums paid to Gold, Weems, Bruser, Sues and Rundell; and
IV. What was the scope of Crowell and Owens, LLC’s representation of Harlton K. Stanley and Machal, LLC.

Discussion

Summary Judgment

As explained by La.Code Civ.P. art. 966(A)(2), the motion for summary judgment is favored and is to be construed to secure the just, speedy, and inexpensive determination of actions. A summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, ^together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). Although the moving party bears the burden of proof, if the movant will not bear the burden of proof at trial on the matter at issue, he or she is not required to negate all essential elements of the adverse party’s claim, action, or defense. La.Code Civ.P. art. 966(C)(2). Rather, the movant’s burden is “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. In turn, if the adverse party does not produce factual support sufficient to establish that “he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

On review, an appellate court reviews the grant or denial of motion for summary judgment de novo. C & C Energy, L.L.C. v. Cody Invs., L.L.C., 09-2160 (La.7/6/10), 41 So.3d 1134. Accordingly, the appellate court asks the same questions as the trial court in determining whether summary judgment is appropriate, ie., whether a genuine issue of material fact exists, and whether the moving party is entitled to judgment as a matter of law. Id.

Merits

As related above, the initial engagement agreement entered into between Machal and the defendant law firm in July 2000 set forth a contingency fee agreement for compensation to the law firm based upon revenue of the prospective casino project. However, by the April 2007 assignment of the agreement, Machal acknowledged that the defendant law firm had performed “substantial professional legal services” without payment of fees. Yet, due to Mr. Stanley’s desire to sell a portion of his ownership interest to a third party, he, along with Machal and 17Stanley Holdings, requested that the defendant law firm reduce its attorney fees per certain terms and conditions. The document represented that the arrangement would be beneficial to all concerned insofar as, upon the transfer of a portion of his interest in Machal, Mr. Stanley would lose the ability to control that corporation.

The revised fee included a reduction in the contingency arrangement previously provided by the engagement agreement. Additionally, the assignment provided that:

In connection with Attorney’s agreement to reduce its fee, and as an additional consideration for Attorney to reduce its fee, Stanley and Holdings agree to pay unto Attorney the sum of ... ($750,000.00) which sum shall be paid on or before December 1, 2007. Client, Stanley and Holdings all agree that Attorney has earned its fees in full as of the date of the execution of this Agreement. Attorney agrees to undertake any miscellaneous matters that may arise in connection with the services set forth in Exhibit 1, if necessary.

The defendant law firm’s motion for summary judgment thereafter arose, when Mr. and Mrs. Stanley failed to make payment under a promissory note, which stated as its purpose that: “The payment of the amount due under this Promissory Note will satisfy all the rights, duties and obligations of the parties to that certain agreement styled Assignment of Engagement Agreement dated April 25, 2007 by and between Stanley Holdings, L.L.C., H.K. Stanley, and Crowell and Owens, L.L.C.” The trial court’s summary judgment awarded the sum due under the promissory note, $989,375.00 plus interest.

As they did before the trial court, the plaintiffs challenge the award and allege that genuine issues remain regarding the defendant’s compliance with the Rules of Professional Conduct in entering into the contingency fee set forth by the employment agreement and resulting assignment (namely whether the law firm advised the client to seek review by independent counsel). The plaintiffs also 18challenge whether the figure ultimately awarded was, in fact, reasonable. The plaintiffs suggest that the defendant law firm failed in its burden of proof in demonstrating that the fee was reasonable/earned as it did not provide documentation of its billing and hours worked. We find no merit to the plaintiffs’ arguments.

Rather, the trial court correctly observed that the ruling now at issue involved only collection on the promissory note. It did not relate to the propriety of the initial engagement agreement and the subsequent assignment of the employment agreement. In fact, the trial court remarked in its reasons for ruling that “[a]s all parties know, the Assignment of Engagement Agreement was ruled as valid and enforceable pursuant to a ruling made on May 6, 2013.” This date corresponds to the trial court’s denial of the plaintiffs’ motion for summary judgment in which they sought to have the assignment declared null and void. The denial of that motion was not made the subject of this appeal. Rather, the appeal was taken only from the judgment granting the summary judgment in favor of the defendant law firm.

Certainly, however, it is without question that a court may inquire into the reasonableness of an attorney fee. See Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982). In this case, however, all evidence introduced in support of the defendant law firm’s motion for summary judgment indicates that the figure reflected work performed under the employment agreement and, subsequently, the assignment of the employment agreement. The assignment stated as such explicitly. Additionally, in both the depositions of Mr. Stanley and Mr. Owens, the two men spoke extensively regarding the contours of the law firm’s representation. In opposition, the plaintiffs have pointed to no specific statements indicating that |9the figures were not reasonable. Merely, they allege that they were not reasonable given the plaintiffs’ ultimate engagement of another law firm to perform additional work necessary in the casino’s development. However, there is no indication that any such work reduced, duplicated, or made unnecessary the work performed by the defendant law firm. Again, the assignment of employment agreement specifically provided that the plaintiffs “agree[d] that Attorney has earned its fees in full as of the date of the execution of this Agreement.”

As for the remaining aspects of the Promissory Note, the plaintiffs have not questioned that the time for payment has passed and that payment was not made. Accordingly, finding no error in the trial court’s enforcement of that note through summary judgment, we leave the ruling undisturbed.

DECREE

For the foregoing reasons, the judgment entered by the trial court is affirmed. All costs of this proceeding are assessed to the appellants, Carolyn Gay Stanley, and Ma-chal, L.L.C.

AFFIRMED.

COOKS, J.,

dissenting.

|,I cannot agree with the majority’s opinion affirming the trial court’s grant of summary judgment in favor of the defendant law firm. I find there are genuine issues of material fact as to whether the “Engagement Agreement” and the “Assignment of Engagement Agreement” are null and void. I find the record supports the earlier finding by the trial court, in its denial of the plaintiffs’ motion for summary judgment. Plaintiffs alleged the defendant law firm, after agreeing to represent HK Stanley for a percentage of income from the casino project, then induced Stanley to sign a promissory note for attorney fees. The defendant law firm argued the “Engagement Agreement” was liquidated and reduced to a fixed fee via the “Assignment of Engagement Agreement” and then via the promissory note.

The “Engagement Agreement” set forth that Crowell and Owens would handle all legal matters for a percentage of the revenue. This was changed by the “Assignment of Engagement Agreement” to a fixed fee. At a minimum, there are questions of fact as to whether the plaintiffs were adequately advised of the scope of the representation by Crowell and Owens. Bill Owens testified that outside counsel, specifically the law firm of Gold, Weems, was employed to “handle [a lawsuit with] Kevin Kean, and also to assist in getting a compact with the State of Louisiana.” There also are genuine issues of material fact as to whether the |2plaintiffs are entitled to offset against any claim for fees by Crowell and Owens, the sums paid to the firm of Gold, Weems for representation of the plaintiffs interests in the casino project. For the above work it performed, Gold, Weems charged over one million dollars, which Mr. Owens conceded was “a very significant fee.” Thus, despite the arrangement that Cro-well and Owens would handle all legal matters, this was not done. Thus, the plaintiffs contended this result was not what Mr. Stanley contemplated when he executed the “Engagement Agreement” and was clearly in violation of Rule 1.8(a) of the Rules of Professional Conduct.

Moreover, plaintiffs have maintained HK Stanley was not advised in writing that he should seek additional legal advice before signing the “Engagement Agreement.” Rule 1.8(a)(2) of the Rules of Professional Conduct requires:

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction;

Mr. Owens acknowledged in his testimony he did not advise Stanley in writing that he should seek additional legal advice before he signed the “Engagement Assignment.” Thus, there are genuine factual disputes as to whether Crowell and Owens complied with the Rules of Professional conduct in this matter.

Crowell and Owens and the majority rely on the fact that the plaintiffs’ prior motion for summary judgment on the issue of the nullity of the “Engagement Agreement” and the “Assignment of Engagement Agreement” was denied. However, that motion for summary judgment was denied because the trial court found genuine issues of material fact existed that precluded the granting of summary judgment. Thus, the nullity issue concerning the “Engagement | .¡Agreement” and the “Assignment of Engagement Agreement” has yet to be ruled upon.

The majority further notes that the plaintiffs did not appeal the earlier denial of their summary judgment. However, the plaintiffs may well have accepted the trial court’s finding that there were genuine issues of fact on the issue of whether the “Engagement Agreement” and the “Assignment of Engagement Agreement” were null and void. In fact, the presence of genuine issues of material fact is what the plaintiffs argue should have precluded the trial court from granting Crowell and Owens’ motion for summary judgment. Thus, plaintiffs’ failure to appeal the prior denial of summary judgment is irrelevant and in no way indicates an abandonment of its contention that the “Engagement Agreement” and the “Assignment of Engagement Agreement” are null and void.

For the above reasons, I find the trial court erred in granting summary judgment in this matter, when there were several genuine issues of material fact present. Therefore, I dissent from the majority’s opinion and would reverse the trial court’s grant of summary judgment and remand this matter for further proceedings.

      . Machal is referenced variously throughout the proceedings as Machal, Inc. or Machal, L.L.C. We reference the usage of the petition.

      . Notably, the trial court did not resolve the defendant law firm's prayer for attorney fees in relation to its central claim on the promissory note. Instead, the trial court held that issue in abeyance. The trial court stated at the hearing that: "The Motion for Partial Summary Judgment is granted." The resulting judgment was entitled simply a "Judgment on Promissory Note” without further determination by the trial court that there was no just reason for delay for the resulting devolutive appeal. See La.Code Civ.P. art. 1915(B). In the event that the trial court fails to provide explicit reasons for its determination that a partial judgment is, in fact, final for appeal purposes, the supreme court has instructed that an appellate court should review the record de novo to determine whether justification for the appeal is apparent. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113. Accordingly, having reviewed this matter under the factors enunciated in Messinger, we conclude that this matter is appropriately considered as a reviewable, partial final judgment.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Rhonda MOORE, Individually and on Behalf of her Minor Son, William Blake Bailey, Plaintiff-Appellant v. John H. SMITH, III, M.D. and Town of Homer d/b/a Homer Memorial Hospital, Defendant-Appellee.
    No. 48,954-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 21, 2014.

      Nelson & Hammons, Shreveport, by John L. Hammons, Cornell R. Flournoy, for Appellant.
    Colvin & Smith, by James H. Colvin, Shreveport, Daniel N. Bays, Jr., Homer, for Appellee.
    Before BROWN, DREW and GARRETT, JJ.
   DREW, J.

| Jn this medical malpractice action, William Blake Bailey (“Blake”) and his mother, Rhonda Moore, appeal a judgment dismissing their claims against the Town of Homer following a trial on the merits.

We affirm.

FACTS

On the afternoon of Friday, February 13, 2004, 11-year-old Blake went to the home of his grandmother, Joyce Rawls, with whom he was temporarily living. Rawls gave Blake a Tylenol because he complained of a headache. She recalled that Blake slept most of Saturday. Blake, who did not eat regularly that Saturday, began vomiting on Sunday morning.

That Sunday afternoon, Rawls decided to take Blake to the emergency room at Homer Medical Hospital (“HMH”). Blake had a recent history of going to the ER there. Rawls recalled that Blake slept while in the waiting room. A history of headaches and vomiting was given to the ER doctor. Rawls was also concerned that Blake had not urinated that day. Blake was admitted to HMH for treatment of acute gastritis and volume depletion. IV fluids of lOOcc per hour were ordered, along with Pepcid and Phenergan.

|2The attending nurse noted that Blake was asleep with a sound rest pattern at 6:30 p.m. Blake was found to arouse easily at 8:30 p.m. He complained of a headache, and a low-grade fever was noted.

At 10:30 p.m., Blake was quiet and without discomfort. He was given Motrin an hour later for headache pain and because his temperature had risen to 100.6 degrees.

Monday, February 16

At 1:45 a.m., Blake’s temperature was down to 99 degrees, and he did not have nausea. He was resting on his side without nausea at 4:00 a.m. Tylenol was given at 6:25 a.m. for headache pain.

The nurse found Blake alert, awake, and oriented at 8:00 a.m. He was tolerating clear liquids, with no apparent complaint or distress.

When Blake’s regular physician, Dr. James Smith, began rounds at approximately 7:30 that morning, he did not know that Blake had been admitted because his chart was not in a rack when Dr. Smith went to the nurses’ station. Dr. Smith was told by a nurse later that morning that Blake was a patient at the hospital.

The nurse noted at 10:00 a.m. that Blake’s grandfather was concerned about him. He had continued headaches and a sleepy feeling. After Dr. Smith was notified, he called 50 minutes later for a report on Blake. Dr. Smith ordered a bolus of IV fluid and continued IV fluids of 200cc per hour following the bolus. The bolus was started at 11:00.

Rawls had remained with her grandson since his admission, but was relieved on Monday afternoon by Blake’s mother, Rhonda Moore.

| sBlake required assistance to walk to the bathroom at 12:30 p.m. Dr. Smith saw Blake while doing rounds at lunchtime. Dr. Smith believed Blake was feeling better, was hungry, and had improvements in his nausea and vomiting symptoms. He anticipated that Blake would continue to improve with rehydration, and he requested a regular diet for Blake. Blake was assisted to the bathroom again at 1:00 p.m. Blake vomited a moderate amount at 2:35 p.m. He received Phenergan five minutes later. By 4:00 that afternoon, Blake was lying in bed with his eyes closed and without any signs or symptoms of nausea.

Dr. Smith saw Blake next when he did rounds at approximately 6:00 that evening. He asked the nurses to unhook the IV so Blake could change shirts. A complete blood count with renal tests was planned for Tuesday morning. At 7:25 p.m., Dr. Smith ordered the administration of Demerol every four hours as needed.

Blake was sleeping soundly at 7:30 p.m., but his family was concerned that he was too sleepy and groggy. According to Rawls, Blake had been lethargic and unresponsive since arriving at the hospital. The attending nurse, Renee Mills, noted that Blake aroused when touched and was spoken to, and he opened his eyes and followed commands with no complaints at the time. Blake answered yes when asked if his head was hurting. Nurse Mills took his vital signs at 8:15 p.m.

At 10:10 p.m., 12.5 mg of Demerol was administered by IV for complaints of headaches. The IV was unhooked so Blake could change his shirt.

[4Moore called the nurses’ station at 11:50 p.m. to report that Blake had a seizure (“first incident”). According to Moore, Blake also wet the bed, and it took Mills over 20 minutes to come to the room. Mills stated that it would probably take less than a minute to get to the room from the nurses’ station, and she would respond as soon as she could if someone called from a patient room and was upset or panicked. Mills observed Blake grabbing his mother’s arm and pulling her shirt. Mills found Blake to be easily aroused and able to move all extremities. He was sleepy and groggy, but was able to follow commands. Mills checked his vital signs at midnight.

Tuesday, February 17

Moore called the nurses’ station again at 1:45 a.m. (“second incident”) to report that Blake was having a seizure. Again, according to Moore, Blake wet the bed and it took 30 minutes for Mills to respond to this second report of seizure. Blake was very still when Mills entered the room. Mills found that Blake aroused when his name was called and opened his legs when asked to. It was noted that Moore said Blake was stiff, but Mills found him to be very flexible. He pulled himself up in bed when asked, was in control of his bowels and bladder, and opened his mouth and lifted his tongue when asked. Blake also knew who Moore was. Mills noted that she did not see any signs or symptoms of seizure activity.

Mills found Blake asleep at 3:00 that morning. She found him awake at 5:00 a.m. without complaints of headaches. He had wet his bed, so his linens and clothes were changed. Moore claimed that she reported a third seizure episode around this time (“third incident”), although this is not | ¡¡reflected in the nursing records. Motrin was given at 6:55 a.m. Mills went off her shift five minutes later.

Dr. Smith was notified of what had happened during the night when he began rounds at approximately 7:00 that morning.

The nurse recorded that Blake was lying in bed, but was lethargic and difficult to arouse at 7:50 that morning. Tylenol was given for fever at 8:10 a.m. Dr. Smith saw Blake shortly thereafter, and he noted that Blake’s mother was convinced that Blake was having seizures. The doctor also noted that Demerol and Phenergan contributed to his sleepiness, although he was arousable, followed commands, and responded appropriately throughout the night. Dr. Smith further noted that Blake had wet the bed twice during the night. Dr. Smith’s diagnosis continued to be acute gastroenteritis with recurrent nausea and vomiting and persistent fever, and headache contributing and/or related to the GI diagnosis.

At 8:50 a.m., Dr. Smith ordered the IV fluid rate lowered to 75cc per hour. More importantly, because Blake had wet the bed, Dr. Smith ordered a CT scan of Blake’s head and sinuses and asked the radiologist to call him with the results. Blake remained difficult to arouse at 9:30 a.m.

The radiologist discussed the CT scan findings with Dr. Smith at 10:80 a.m. The scan showed an acute right thalamic hema-toma. The radiologist noted that it was an extremely unusual finding in a pediatric patient. Dr. Smith began working on transferring Blake to LSUHSC-Shreve-port (“LSU”).

At 10:40 a.m., Blake responded to tactile stimuli and opened his eyes, but remained lethargic. At 11:30 a.m., Blake was more difficult to arouse, Rbut would arouse to sternal rub. At 12:40 p.m., Blake would not arouse to sternal rub, so Dr. Smith was paged on his beeper. At 1:00 p.m., Dr. Smith returned the call and said they were awaiting word from doctors at LSU. The next hour, Dr. Smith ordered the administration of Decadron and Mannitol.

Dr. Smith noted that it was not easy to make the transfer since LSU’s bed status was not optimal. The pediatric neurosurgery department eventually agreed to accept Blake to the burn unit ICU for close management and placement of a drainage tube. Blake arrived at LSU by ambulance at approximately 4:00 p.m.

Dr. Smith noted that at the time of the transfer, Blake was arousable although more lethargic than he had been. The diagnoses on discharge were (1) right tha-lamic intracerebral hemorrhage with obstruction of drainage from right ventricle causing obstructive hydrocephalus; (2) progressive decreased level of consciousness secondary to No. 1; and (3) nausea, vomiting, and anorexia secondary to No. 2.

Doctors at LSU unsuccessfully attempted a right frontal ventriculostomy at 6:30 that evening. A CT scan of the head done at 10:46 p.m. showed right thalamic hema-toma, compression of the third ventricle, midline shift, hydrocephalus, and a post-surgical track.

Wednesday, February 18

|7An MRI of the brain done in the morning showed a large right thalamic hemato-ma and swelling, ventricular compression and midline shift, and post-surgical linear track. A CT scan of the head done just after noon showed right thalamic and sub-thalamic hematoma, and an interrupted path with some blood content going through the right frontal lobe arising from a burr hole.

At 3:30 p.m., doctors at LSU successfully placed a shunt. A post-surgical CT scan of the head showed placement of a shunt, but no other significant changes from the day before. The ventricles were still dilated, and the large right thalamic hematoma, swelling, and compression remained unchanged.

Blake remained at LSU for approximately a month. He was then transferred to Willis-Knighton North for several weeks of rehabilitation. After being discharged home, Blake began receiving rehabilitation in Ruston.

Dr. Aristotles Pena-Miches, who examined Blake on September 23, 2009, diagnosed Blake as having hemidystonia hemi-paresis, weakness in the left side with decreased dexterity of the extremity, sensory loss in the left forehead, and dystonia, or abnormal posture of the left hand, as a result of the damage done to his brain. The fingers on Blake’s left hand are far apart, and he has difficulty opening and closing the hand. His left arm sometimes involuntarily flexes when he is nervous. The toes on his left foot curl under, with his big toe sticking up, so Blake cannot run swiftly,, and he has trouble walking up stairs. Although future physical therapy will not help his deficit as it is permanent, it will help him maintain dexterity, avoid permanent | ^skeletal contractures, and develop compensatory mechanisms. Dr. Pena-Miches did not think all of Blake’s deficits had been uncovered. Blake also has, post incident, a history of temper outburst, is easily frustrated and more impulsive, and has trouble with his short-term memory. Blake now draws social security disability.

PROCEDURAL HISTORY

Blake and his mother contended that Dr. Smith failed to appropriately evaluate, diagnose, and treat Blake’s condition, and believing that Blake only had a stomach ailment, he refused to perform diagnostic studies including a CT scan despite specific requests from Blake’s family.

As pertains to the nurses at HMH, Blake and his mother contended that the nurses negligently failed to timely and appropriately respond to the calls for assistance made by Moore on Monday night and Tuesday morning, and that they failed to timely notify a physician about the change in Blake’s condition.

A timely request for a medical review panel (“MRP”) was filed.

The MRP concluded that:

• Dr. Smith acted appropriately and timely on the information that he had;

• the doctor’s conduct was not a breach of the standard of care;

• it could not find the conduct of the nurses to be below the applicable standard of care, when using their skills . and best judgment in not reporting the seizure complaints to Dr. Smith or an on-call doctor during the night; and

• the notes of the nurses as to their observations when called to Blake’s room did not support a determination that seizures had occurred.

| ¡¡Moore, individually and on behalf of Blake, filed suit against Dr. Smith and the Town of Homer d/b/a Homer Memorial Hospital. Summary judgment was granted in favor of Dr. Smith, dismissing all claims against him.

Following a bench trial, the court ruled in favor of HMH.

The trial court concluded:

In this case, the evidence presented at trial and through deposition testimony does not support a finding that HMH was the cause-in-fact of Bailey’s injuries. Plaintiffs did not present sufficient evidence to show that HMH, its nurses, and/or staff caused Bailey’s injuries. To the contrary, the evidence showed that nothing HMH did caused the stroke. Additionally, Plaintiffs failed to offer any evidence that HMH’s care of Bailey worsened his injuries or resulted in a loss of chance of a better result.
Irrespective of whether the nurses were negligent in failing to call the doctor at some point during the night of February 16, the evidence presented at trial, as well as the deposition testimony submitted at trial, does not show that it would have made any difference in the plaintiffs condition. No evidence presented that the hospital nurses caused the plaintiffs stroke and no evidence shows that the negligence of the nurses, if any, caused plaintiffs chance of a better result was lessened.

Blake has appealed.

DISCUSSION

Blake argues on appeal that the trial court was manifestly erroneous in: (1) not concluding that nurse Renee Mills was negligent when she failed to call a doctor about the changes in Blake’s condition, which delayed the CT scan, and (2) failing to find that the negligence of HMH caused Blake to suffer harm that he would not have otherwise suffered or lessened his chances of a better result.

|1f>At trial, the court heard testimony from Blake, Moore, Rawls, and Mills. In addition, the trial court was presented with depositions from one nurse consultant and six medical doctors. It was not disputed that thalamic bleeds are rare in pediatric patients, and that nothing done at HMH caused the bleed. Of course, there was a dispute among most of the doctors concerning whether earlier diagnosis of the bleed would have resulted in a different outcome for Blake.

Dr. Gregory Phillips, a member of the MRP, was board-certified in family practice medicine. He believed that what Mills observed did not support the typical finding of a seizure. However, he would have expected a call from Mills after the second incident. Nevertheless, Dr. Philips believed that it was within Mills’ discretion whether or not to call a doctor, and her decision not to do so was not below the standard of care. Dr. Phillips did not have an opinion as to whether Bailey had a bad result because of the treatment he received at HMH.

Dr. William McBride was also board-certified in family practice and a member of the MRP. He preferred that nurses call him when a patient’s family was upset, but that did not necessarily mean there was a medical reason for the call. He would not have expected a nurse to call him based on what Mills recorded following the first and second incidents. Dr. McBride agreed that earlier detection of the bleed would not have made a difference, and he thought the outcome was good or very good considering the | T1 diagnosis. According to Dr. McBride, the need for placement of a shunt was not evident until right before Blake was transferred to LSU, and the placement of the shunt could not have been done at HMH.

Dr. John Smith, board-certified in family practice medicine, began treating Blake in 1999. Blake had frequent problems with headaches and abdominal pain. The cause of the headaches was never determined. Dr. Smith said that the on-call doctor should have been notified after the first incident because he wanted to be notified when a patient of his had a change in status. Dr. Smith also felt the on-call doctor should have been notified following the second and third incidents. In light of the severity of the headaches, progressive decreased levels of consciousness, and reports of seizure, the nursing staff should have informed the on-call doctor earlier about the changes in Blake’s condition.

Dr. Smith ordered the CT scan because Blake had wet the bed. HMH did not have a staff radiologist, but CT scans could be examined over a phone or the internet. Dr. Smith explained that Blake had a small bleed that went undiagnosed over a period of 24-36 hours until it got large enough to cause a midline shift and severe compression of the third ventricle. The midline shift meant that bleeding and edema had pushed the midline structures to the other side of the skull. The compression of the third ventricle created too much intracranial pressure because the cerebral spinal fluid could not drain.

Dr. Smith acknowledged that the nurses’ entries beginning at 9:30 a.m. on February 17 showed decreased levels of responsiveness by Blake that indicated a pattern of progressive deterioration. While Dr. Smith | ^believed that the brain abnormalities would have been detected if the CT scan had been performed during the night on February 16, which would have caused him to attempt the transfer earlier, he did not think that transferring Blake to a tertiary care center sooner would have affected the outcome.

Dr. Mahmoud Rashidi Naimabadi, a neurosurgeon with a specialty in pediatric neurosurgery, treated Blake at LSU. Dr. Rashidi had been asked by plaintiffs’ counsel to provide an opinion regarding the care and treatment rendered at HMH. Dr. Rashidi felt that based upon the progressive headaches, decreased levels of consciousness, and possible seizures, the nurses should have alerted the doctors sooner about the changes in Blake’s condition. Blake’s increased headaches and lethargy were related to the hydrocephalus. In addition, the nurses should have reported to a doctor that there was a total input of 2649cc of fluid and output of only 600cc during the first 24 hours of fluid administration. Administration of fluids at those levels, which Dr. Rashidi felt may have been done too aggressively, could have worsened the hydrocephalus.

Dr. Rashidi could not find the cause of the bleed, nor did he have an opinion as to its cause. He did not know when the bleed started, and he felt it was possible that it originated before Blake went to HMH. According to Dr. Rashidi, the size of the bleed determines how long after it starts that a midline shift would appear on a CT scan.

Dr. Rashidi testified that if the CT scan had been run at midnight, it probably would not have changed the outcome, at least not significantly. An earlier CT scan may have found the hydrocephalus sooner, and the only |lsthing that would have changed was there may have been less effect from the hydrocephalus. The severity of the hydrocephalus would determine how much difference implanting the shunt earlier would have made to Blake’s prognosis, but Dr. Rashidi could not recall how severe the hydrocephalus was. Dr. Rashi-di agreed that based on the shunt being placed on Wednesday after Blake was transferred on Tuesday, the delay in ordering the CT scan at HMH probably did not affect Blake’s treatment or condition. Near the end of his deposition, Dr. Rashidi was asked if considering that Blake was at LSU for almost 24 hours before the shunt was placed, would the nine-hour delay in ordering the CT scan have changed any of Blake’s treatment or affected his outcome. Dr. Rashidi replied that one could not say for sure, and probably not.

Dr. Aristotles Pena-Miches was board-certified in pediatric neurology. He was asked by plaintiffs’ counsel to review the records in this matter. He also examined Blake on September 23, 2009. He had offered to see Blake again, but Blake never took him up on the offer.

Dr. Pena-Miches opined that Blake had been misdiagnosed upon admission to HMH as he presented with a classical clinical picture of acute increased intracra-nial pressure but was instead diagnosed with gastroenteritis. He did not mean that the ER doctor should have diagnosed the brain bleed, but he should have identified the symptoms of increased intracranial pressure.

Dr. Pena-Miches believed that Blake started having changes in mental status and nonconvulsive seizures on the day he was admitted to HMH. He 114thought that the brain was most likely already bleeding when Blake went to the ER, although there is no way to be certain of how long before. Dr. Pena-Miches opined that the hematoma kept increasing until the bleed was found because Blake’s condition continued deteriorating after admission to HMH. His conclusion was that the thalamic bleed grew, compressed neighboring structures, and caused the problems faced by Blake. Dr. Pena-Miches explained that if intracranial pressure is left unchecked, the chances of brain damage increase exponentially. He did not believe there was brain damage before Blake got to HMH based on the new symptoms that Blake developed there.

Regarding the care provided by the nurses, Dr. Pena-Miches testified that while the incidents on Monday night and Tuesday morning may not have appeared to be seizures to a layperson, a properly trained nurse would have immediately raised the alarm. Nurses are not supposed to diagnose, but are supposed to notify doctors so that a doctor can make decisions about the proper treatment.

Dr. Pena-Miches disagreed with Dr. Rashidi’s statement that the delay in ordering the CT scan did not affect the treatment provided to Blake. An earlier CT scan and earlier identification of the bleed would have completely changed the management of Blake’s condition, and more likely than not would have changed the outcome, although there is no way to tell how much it would have improved the prognosis. He explained that once a brain bleed is diagnosed and there is a space-occupying lesion, the patient needs to be sedated, have the head elevated, be confined to a bed, receive . anticonvulsion drugs, and not receive the level of fluids that Blake was fygetting. Serial imaging of the brain also needs to be done to exclude surgical intervention.

Dr. Robert Katz practiced as a pediatric intensivist. He also reviewed 20-25 potential malpractice cases a year, mostly for plaintiff lawyers. Dr. Katz thought Dr. Smith’s treatment fell below the standard of care because Blake had a deteriorating neurological function and diagnostic studies were not done until his third day at HMH, and because the IV regimen prescribed by Dr. Smith was incorrect and exacerbated the central nervous system problems. Dr. Katz also thought that the conduct of the nurses fell below the relevant standard of care because there were several situations, beginning with the first incident, when Blake’s neurological status should have been a concern, yet the nurses did not call a doctor.

Dr. Katz was not positive about what caused the thalamic bleed, but guessed that Blake had a congenital malformation of the artery that fed that part of the brain. He recognized there was no way to determine when the bleed started, although he assumed it started when Blake had the seizures or sometime before that. He believed the effect of the bleeding was made worse by the excessive IV fluids and the delay in diagnosing the bleed.

Dr. Katz explained that the amount of bleeding, whether there is an obstruction so that the cerebral spinal fluid cannot drain, and whether there is increased swelling in the brain, impacts the evolution of a neurologic injury. Blake developed hydrocephalus from an obstruction to the drainage of cerebral spinal fluid as a result of the bleed and the midline shift. Dr. 11fiKatz believed that the fluid buildup happened slowly and Blake’s brain initially had time to compensate until its compensation mechanism stopped working.

Dr. Katz opined that while he did not know how much worse Blake’s condition was made by the delay and the excessive IV fluids, in all probability Blake would have had less residual damage with an earlier CT scan, and without receiving an extraordinary amount of fluids. Dr. Katz could not quantify how much less the damage would have been.

ANALYSIS

When a medical malpractice action is brought against a physician, the plaintiff must establish the standard of care applicable to the physician, a violation of that standard of care by the physician, and a causal connection between the physician’s alleged negligence and the plaintiffs resulting injuries. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228; Johnson v. Morehouse Gen’l Hosp., 2010-0387 (La.5/10/11), 63 So.3d 87.

Nurses who perform medical services are subject to the same standards of care and liability as are physicians. The nurse’s duty is to exercise the degree of skill ordinarily employed, under similar circumstances, by members of the nursing or health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case. Bolton v. Willis-Knighton Med. Ctr., 47,923 (La.App.2d Cir.4/24/13), 116 So.3d 76, writs denied, 2013-1307, 2013-1308 (La.9/20/13), 123 So.3d 176.

117The standard of appellate review for medical malpractice claims was discussed by this court in Crockham v. Thompson, 47,505, p. 5-6 (La.App.2d Cir.11/14/12), 107 So.3d 719, 723-24:

The manifest error standard applies to the review of medical malpractice cases. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong.
Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Where the fact finder’s conclusions are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.
Where there are conflicting expert opinions concerning the defendant’s compliance with the standard of care, the reviewing court will give great deference to the conclusions of the trier of fact.
The appellate court must not reweigh the evidence or substitute its own factual finding because it would have decided the case differently. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one.

Citations omitted.

As noted earlier, this case involves a mixture of live and deposition testimony. Fact finding is allocated to the trial court, and its evaluations of credibility, even when based on depositions offered in lieu of live testimony, are accorded great deference. Virgil v. American Guarantee & Liab. Ins. Co., 507 So.2d 825 (La.1987). We are also mindful that appeals lie from judgments, not reasons for judgment. Retail Merchants Ass’n, Inc. v. Forrester, 47,936 (La.App.2d Cir.5/15/13), 114 So.3d 1175.

|islt is imperative to keep in mind that what is in dispute in this matter is not whether a delay in ordering the CT scan (as a result of Mills not calling the on-call doctor on Monday night or Tuesday morning) caused all of Blake’s damages. Damages were going to be suffered even if the CT scan had been ordered at the moment of the first incident. Rather, the issue is whether the delay in ordering the CT scan caused Blake to suffer damages he would not have otherwise suffered, or lessened his chances of a better result.

In its reasons for judgment, the trial court noted that irrespective of whether the nurses were negligent, the evidence did not show that it would have made any difference in Blake’s condition. There is a reasonable factual basis in the record for this finding of a lack of causation.

. Dr. Rashidi was asked if the nine-hour delay in ordering the CT scan changed any of Blake’s treatment or affected his outcome. Dr. Rashidi replied that one could not say for sure, and probably not. Dr. Rashidi, who is a neurosurgeon who treated Blake at LSU, is as independent an expert witness as one is going to find in this record. We also note that neither Dr. Katz nor Dr. Pena-Miches was able to say how much worse Blake’s condition was made by the delayed diagnosis at HMH. Also to be considered is that HMH is a rural hospital, and it is not clear how quickly the desired results would have been obtained if the CT scan had been ordered in the middle of the night. As it was, it took some time on Tuesday for the transfer to LSU to be accomplished. Finally, we must recognize that Blake was at LSU for nearly 24 hours before the shunt was successfully placed.

119The trial court’s finding that HMH is not liable for any negligence in this case is not clearly wrong or manifestly erroneous. The judgment dismissing Blake’s and Moore’s claims against the Town of Homer d/b/a Homer Memorial Hospital, is affirmed.

DECREE

At appellants’ costs, the judgment is AFFIRMED.

      . Blake presented there on January 9, 2002, with complaints of lower back pain due to a recent fall. He was discharged that same day.
      Blake went there on March 30, 2003, with complaints of abdominal pain that started that afternoon. He explained that he normally had that type of pain when he was upset, and he was upset about going to his father’s house the next day. He was discharged that night after being given a GI cocktail along with other drugs
      On April 13, 2003, Blake presented there with complaints of mid-upper abdominal pain for three weeks. His mother said he had been vomiting blood for one week. He was discharged later that day.

      . This was an attempt to place a catheter in the brain to relieve pressure. It is not the same as a shunt, but it basically has the same function.

      . Patsy McHan, a nurse consultant, testified on behalf of plaintiffs. She testified that Mills should not have ignored Moore’s reports of seizures just because Mills did not see them occur. In light of the reports of seizures and Blake’s prior symptoms of nausea and vomiting, grogginess, and headaches, McHan believed that Mills should have alerted the on-call doctor.

      . Dr. Pena-Miches had reviewed records for plaintiffs’ counsel in several prior cases.

      . He estimated that he has worked on 20-30 cases for plaintiffs’ counsel.

      . He assumed that Dr. Smith had knowledge of the changes in Blake's condition.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Jose M. LICONA.
    No. 13-KA-543.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Matthew Caplan, Rachel Africk, Seth W. Shute, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/App ellee.
    Jose M. Licona, Louisiana State Penitentiary, Angola, Louisiana, Defendant/Appellant, Pro Se.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

1 ¡¿Defendant, Jose Manuel Licona, appeals his convictions and sentences for aggravated rape and sexual battery on the basis of trial court error denying his multiple motions for a mistrial. For the reasons that follow, we affirm his convictions and sentences.

Defendant was indicted by a Jefferson Parish Grand Jury on October 20, 2011, and charged with one count of aggravated rape of a juvenile under the age of 13 in violation of La. R.S. 14:42 and one count of sexual battery on the same juvenile in violation of La. R.S. 14:43.1. He pled not guilty and filed several pre-trial motions, including a motion to suppress his statements which was denied after a hearing. Defendant proceeded to trial on March 18, 2013. After a four-day trial, a twelve-person jury found Defendant guilty as charged on both counts. The trial court sentenced Defendant to life imprisonment for the aggravated rape conviction and 50 years for the sexual battery conviction. Both sentences were ordered to be | ¡¡served without benefit of parole, probation or suspension of sentence and were ordered to run concurrently with each other.

FACTS

On the afternoon of July 10, 2011, J awoke from a nap and heard her five-year-old daughter, M, tell Defendant, J’s live-in boyfriend, that she was bleeding. Upon putting M in the bathtub, J pulled down M’s pants and noticed she was bleeding. When J asked M why she was bleeding, M kept saying she did not know. J saw clots of blood coming out, at which time she and Defendant took M to East Jefferson General Hospital (EJGH). M was subsequently transferred from EJGH to Children’s Hospital via ambulance.

Once at Children’s Hospital, M was evaluated by Dr. Jamie Jackson, a forensic pediatrician with the Audrey Hepburn Care Center at Children’s Hospital. Dr. Jackson was called to consult on the case because of concerns for sexual abuse due to M’s unexplained vaginal bleeding. After obtaining M’s basic medical history from J, Dr. Jackson asked J and Defendant to leave the room so she could speak to M privately. When Dr. Jackson asked M what happened, M stated that her “dad” hurt her. She told Dr. Jackson that her “dad” put his thing “here” and pointed to her front middle vaginal area and her butt. M also indicated that her “dad” played with her vaginal area with his finger. After Dr. Jackson talked to M, M was taken to surgery so her injuries could be fully assessed and evidence could be collected.

14Prior to surgery, M was examined by Dr. Kurt Eeg, a pediatric urologist. He noted that M had blood stains on her inner thighs, a clot where the vagina and urethra are located, and a small tear in the 7:00 position. In surgery, Dr. Eeg determined that M had a complete laceration, or a deep cut, along the entire length of her vagina and along the posterior wall of the vagina. Dr. Eeg believed he could see M’s bowels, indicating the tear went into M’s peritoneal cavity, and had to consult with a general surgeon on how to repair the injury. Both Dr. Jackson, who was present during the surgery to take photographs and collect evidence, and Dr. Eeg testified that M’s injuries were consistent with penetrating trauma, such as penile/vaginal penetration.

At approximately 8:30 p.m., Officer Michael Jackson with the Kenner Police Department was dispatched to Children’s Hospital regarding a possible aggravated rape. After speaking with Dr. Jackson, Officer Jackson contacted his supervisor and then spoke with Detective Charlotte Synigal, who was assigned as the lead investigator on the ease. Pursuant to Det. Synigal’s instructions, Officer Jackson separated J and Defendant until Det. Synigal arrived.

Upon Det. Synigal’s arrival, Dr. Jackson gathered the Detective, J and a worker with child protective services, and disclosed what M had told her about what had happened. Det. Synigal then spoke with Defendant, who agreed to go to the police department to further discuss the matter. Thereafter, Det. Synigal was able to meet with M in the surgery recovery area, at which time M provided information consistent with that given by Dr. Jackson.

Early in the morning on July 11, 2011, Det. Synigal subsequently went to the police department, where she met with Defendant and advised him of his Rrights. Defendant waived his rights, and Det. Sy-nigal proceeded to interview him. During the interview, Defendant indicated that he and J were the only people who cared for M. He suggested to Det. Synigal that M might have caused the injury herself by inserting something into her vaginal cavity. According to Det. Synigal, when she told Defendant that M said he had vaginally and anally raped her and showed him Dr. Jackson’s report, Defendant “just kind of laughed and ... said that can’t be right, there has to be some other explanation for this.” When Det. Synigal specifically asked if M was lying, Defendant replied “no.” . Det. Synigal ended the interview once Defendant started laughing and she knew the interview would not progress any further. Defendant was subsequently arrested and transported to the jail.

Later that same day, Defendant agreed to talk with Det. Synigal, and gave two recorded statements. In his first statement, Defendant referred to M as his daughter. The statement was stopped shortly after it began when Defendant indicated he needed to use the restroom. After a break, Defendant gave a second statement in which he made inculpatory statements. Specifically, Defendant apologized for not previously telling the truth about the incident, asked God’s forgiveness for what he had done, admitted that he “must have been the person who did that to her,” that he must have done everything that M and the doctors said, and that he was there to “take responsibility” for what he had done.

Meanwhile, a search warrant had been obtained and was executed at the Kenner apartment where Defendant, J and M lived. Various items and clothing had been seized, including bloodied underwear. A day or two after the search, J called the police to report that she had found a t-shirt and a pair of men’s grey boxers balled up inside a towel in the laundry room. J stated these clothes belonged to Defendant. The police collected these items from the apartment and | (¡performed DNA testing on the boxers, which appeared to have blood stains on them.

The DNA test results showed that there was a mixture of more than one individual’s DNA on the boxer shorts. The DNA test results showed that M could not be excluded as a major donor to the DNA mixture, but Defendant was excluded as a possible donor. Further DNA testing, specifically an amplified test for Y chromosome testing, was conducted on the DNA mixture and revealed that Defendant and all males within his paternal lineage could not be excluded as a possible donor of the DNA mixture found on the boxer shorts.

Ten days after the incident, on July 20, 2011, M was interviewed by Suzanne Jolis-saint, a forensic interviewer at the Jefferson Children’s Advocacy Center (CAC). This videotaped interview was played for the jury. During the interview, M stated that “Manuel” had hurt her and had put his “thing” in her “pee part” and “butt.” When asked to identify Defendant’s “thing” on a body diagram of an adult male, M circled the front middle part of male’s pants, between the legs. She also stated that “Manuel” put his finger in her “pee part.” She again circled the finger on the body diagram of the adult male. M further stated that “Manuel” licked her “pee part” with his tongue. M explained this happened in her mother’s bedroom on the bed while her mother was downstairs on the couch.

At trial, M, who was six years old, had great difficulty testifying. However, she was able to testify that she went to the hospital because she “got hurt.” She stated that she told the truth to the doctors at the hospital. M was shown the body diagrams from her CAC interview, and she explained that she circled the parts on the girl diagram where she was hurt. M identified Defendant in court as the person who hurt her.

JjISSUES

On appeal, Defendant, through counsel, raises four assignments of error, all of which relate to the trial court’s denial of several motions for mistrial made by Defendant throughout the course of the trial. Specifically, Defendant argues the trial court erred in denying his motions for mistrial when (1) he was compelled to appear before the jury venire during voir dire in his orange prison jumpsuit; (2) the prosecutor became so overcome with emotion during his opening statement that he was unable to continue without a recess in the proceedings; (3) a juror passed out after observing photographs of the victim’s injuries and Dr. Jackson rendered aid to the juror in the middle of her testimony; and (4) the trial court referred to the victim as a “protected person” who “should be treated accordingly” in front of the jury.

Additionally, Defendant filed a pro se supplemental brief asserting the trial court erred in not declaring a mistrial because of prejudicial illustrations regarding the crimes of which Defendant was accused which were used by the prosecutor during voir dire.

LAW & DISCUSSION

Motions for Mistrial — Standard of Review

A mistrial is a drastic remedy and, except in instances m which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to a defendant, depriving him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113-14, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684.

| ^Louisiana Code of Criminal Procedure Article 775 provides for a mistrial when prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized under La.C.Cr.P. arts. 770 or 771. A mistrial under Article 775 is discretionary and is warranted only when trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Davis, 07-544 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, 68, writ denied, 08-380 (La.9/19/08); 992 So.2d 952.

Appearing Before the Jury Venire in Identifiable Prison Attire

Defendant first argues a mistrial was warranted when he was required to appear before the jury venire dressed in his orange prison jumpsuit. He maintains his constitutional presumption of innocence was gravely impinged by the jury seeing him in prison clothes prior to trial.

“Compelling a criminal defendant to stand trial in readily identifiable prison attire over his express objection infringes upon his presumption of innocence and denies the defendant due process of law.” State v. Spellman, 562 So.2d 455, 456 (La.1990), citing Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The United States Supreme Court and the Louisiana Supreme Court have found the practice to be “inherently prejudicial” to the defendant in that the practice “threatens the ‘fairness of the factfinding process.’ ” Spellman, supra, quoting Estelle, supra. It is not the defendant’s presence at trial in prison garb that violates his right to a presumption of innocence, but rather it is being compelled to |9stand trial in prison clothes in the face of an objection by the defendant that violates his rights. State v. King, 00-2767 (La.App. 4 Cir. 8/22/01); 804 So.2d 57, 60, writ denied, 01-2794 (La.8/16/02); 822 So.2d 612. When a defendant objects to standing trial in identifiable prison attire before the jury has been impaneled, “[a] reasonable delay is appropriate to accommodate a defendant’s right to be tried in his own clothes.” Spellman, 562 So.2d at 456.

The record shows that there was a discussion between the parties on the Friday before the Monday trial date in which the importance of a 10:80 a.m. trial start time was stressed. The State indicated that it had a witness who was flying in to testify and had a tight travel schedule, thereby limiting his availability to testify. By 11:00 or 11:30 a.m. on the day trial was to begin, Defendant’s civilian clothes had yet to be produced. Nonetheless, the trial court ordered Defendant to be produced in the courtroom. Defendant was brought in wearing an orange jumpsuit, but no shackles. Thereafter, jury selection began. When Defendant was introduced to the jury venire, he remained seated at the defense table. The record shows Defendant appeared before the jury venire for 20-30 minutes, before his family arrived with his clothes. Thereafter, the court recessed for lunch. Upon court resuming after lunch, Defendant was dressed in civilian clothes for the remainder of jury selection and the entirety of trial.

After lunch, at 2:07 p.m., Defendant moved for a mistrial on the basis the jury saw him in his orange prison jumpsuit. The trial court denied the motion and jury selection continued. Thereafter, at 3:55 p.m., the selected jurors were sworn as a panel. Trial concluded for the day and opening arguments began the next morning.

We first note that nothing in the record indicates Defendant objected to appearing before the jury venire in his prison attire. While the record indicates the | ^parties “had a conversation or two in chambers about it,” the substance of those conversations were not made a part of the record. Rather, the record only reflects that Defendant moved for a mistrial after he had changed into civilian clothes. Failure to make a timely objection negates the presence of compulsion required to establish a constitutional violation. See State v. Brown, 585 So.2d 1211, 1213 (La.1991), citing Estelle v. Williams, supra.

Nonetheless, even if Defendant had objected to appearing before the jury veni-re in his orange prison jumpsuit prior to the beginning of jury selection, we do not find that he was forced to stand trial while so dressed so as to violate his constitutional right to the presumption of innocence. Defendant appeared for a short period of time, 20-30 minutes, before the jury venire prior to a recess, during which time he was allowed to change into civilian clothes. For the remainder of jury selection that day and the entirety of the next three days of trial, Defendant was dressed in civilian clothes. Thus, there was no “constant reminder of the accused’s condition” that may have affeeted a juror’s judgment. Compare Brown, 585 So.2d at 1213.

Additionally, we note that the trial court had delayed the beginning of trial by two and one-half hours, presumably in an attempt to accommodate Defendant’s request for civilian clothing. However, despite the fact subpoenas were served on Defendant and his counsel four months before trial in November 2012 notifying them of the March 18, 2013 trial date and a 9:00 a.m. start time, Defendant was not prepared with civilian attire. Defendant had ample opportunity to obtain civilian clothing before his trial. We find that delaying trial until 11:00 or 11:30 a.m. when trial was noticed for 9:00 a.m.' gave Defendant reasonable opportunity to secure civilian clothing. A trial court is not expected to delay trial beyond a reasonable time to accommodate a defendant’s request for alternative clothing. See Spellman, 562 So.2d at 456. |nIn this case, any further delay would have prejudiced the State because of the limited availability of one of its witnesses, a situation which the State had previously made known to defense counsel and the trial court.

While the practice of a defendant standing trial in readily identifiable prison attire over his objection has been held to be “inherently prejudicial,” such practice is tolerated “where justified by an essential state interest specific to each trial.” Spellman, 562 So.2d. at 456, quoting Holbrook v. Flynn, 475 U.S. 560, 569-570, 106 S.Ct. 1340, 1345-46, 89 L.Ed.2d 525 (1986).

Based on the totality of circumstances in this case, we do not find Defendant’s constitutional presumption of innocence was violated when he briefly appeared before the jury venire wearing prison attire prior to changing into civilian clothes for the duration of the four-day trial. Specifically, we do not find Defendant was forced to stand trial in prison attire over his objection. We note that the courts have not gone so far as to prohibit a defendant from appearing before the jury in prison clothes under any circumstances. State v. Cleveland, 25,628 (La.App. 2 Cir. 1/19/94); 630 So.2d 1365, 1369, citing State v. Newton, 562 So.2d 978 (La.App. 3rd Cir.1990). Emotions of Prosecutor

Defendant next asserts that the trial court erred in denying his motion for a mistrial when the prosecutor lost his composure and started crying during the State’s opening argument.

The record reflects that as soon as the prosecutor began his opening argument, Defendant moved for a mistrial, noting that the prosecutor was crying at the stand and there had been minutes of silence in front of the jury while the prosecutor attempted to compose himself. The trial court observed that it noted | ^“something was amiss” with the prosecutor as he approached the lectern. Specifically, the trial court noted that “[the prosecutor] paused and it looked like he was becoming a little teary eyed.” The trial court further noted that within seconds after that and after the prosecutor took a sip of water, the parties approached the bench and Defendant moved for a mistrial. The trial court concluded the incident was not so prejudicial so as to warrant a mistrial and denied Defendant’s motion. The trial court further noted for the record that the prosecutor had his back to the jury the entire time of the bench conference. The prosecutor then indicated that he had composed himself and he proceeded to give his opening statement with no further emotional display noted in the record.

Courts have traditionally upheld the denial of a motion for mistrial based on emotional outbursts when a defendant fails to show their influence upon the jury prejudiced his right to a fair trial. State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12); 106 So.3d 1232, 1249, writ denied, 13-306 (La.6/21/13); 118 So.3d 413, citing State v. Clark, 02-1463 (La.6/27/03), 851 So.2d 1055, 1079 n. 25, cert. denied, 540 U.S. 1190, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004). The Louisiana Supreme Court has explained that courts “must credit the jurors with the good sense and fair-mindedness to see these outbursts for what they [are], the natural and irrelevant expression of human emotion, and not let the outbursts influence their decision.” State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, 183, cert. denied, 528 U.S. 1050, 120 S.Ct. 589,145 L.Ed.2d 489 (1999).

Defendant argues that prejudice was likely by the emotional display by a “respected and experienced prosecutor himself who was so disturbed by the mention of the case,” but fails to demonstrate that the emotional display had any effect on the jury so as to prejudice his right to a fair trial. The record shows the | ^prosecutor became teary-eyed when he commenced his opening statement. After a brief period, the prosecutor composed himself and continued his opening statement. There is no indication there was any additional emotional display by the prosecutor throughout the remainder of the three days of trial. Additionally, the trial court instructed the jury that they were not to be influenced by sympathy, passion, prejudice, or public opinion, and that they were “to base [their] verdict solely upon the evidence, without prejudice or sympathy.” The trial court further instructed the jury that the opening statements of counsel were not to be considered as evidence.

Because Defendant does not demonstrate, and the record does not indicate, how the prosecutor’s display of emotion could have prejudiced him to such a degree that a mistrial was warranted, we find no abuse of the trial court’s discretion in denying Defendant’s request for a mistrial on this ground.

Emergency Medical Aid Rendered by Witness to Juror

Defendant also asserts the trial court erred in denying a mistrial when a juror passed out after viewing graphic photographs of the victim’s injuries, and Dr. Jackson left the witness stand to render aid to the juror. Defendant contends a mistrial was warranted because these occurrences made it impossible for him to obtain a fair trial. He argues that the actions of Dr. Jackson in rendering aid to a juror in need caused the jury to develop a greater respect for Dr. Jackson, giving the State an unfair advantage and preventing Defendant from getting a fair trial.

During Dr. Jackson’s testimony, the State displayed two photographs of the victim’s injuries. The first photograph showed the victim’s genital, perineum and anal area prior to any manipulation or surgery. The blood clot that had been previously testified about was visible in the photograph. The second photograph was also of the victim’s genital area and showed the full extent of her injuries, | ^including the tear along the entire length of the vagina. Shortly after Dr. Jackson explained the photographs, a juror passed out.

Within seconds after the juror became unconscious, another juror, who was a nurse, rendered assistance. When someone announced the juror was not breathing, Dr. Jackson left the witness stand, ran over to the juror, and rendered aid by holding his head and checking for a pulse. Emergency Medical Services (EMS) subsequently arrived and tended to the ailing juror, at which time Dr. Jackson left the courtroom. After the juror regained consciousness, he explained to the trial court that he was not very good with blood, he started feeling a little lightheaded after the last picture, and then he passed out. After stating his desire to be excused from the jury, the juror was replaced with an alternate.

Thereafter, Defendant moved for a mistrial under La.C.Cr.P. art. 775. The trial court denied the motion, stating that while a remarkable event occurred, nothing more transpired than a witness, who was a doctor acting by a moral and professional mandate and was a Samaritan with certain skills, rendering aid. The trial court noted that no words were exchanged between the witness and the juror and that the witness exited the courtroom upon the arrival of emergency services.

Even if a mistrial was warranted under Article 775, the failure to grant a mistrial does not result in an automatic reversal of a defendant’s conviction, but would be trial error subject to the harmless error analysis. State v. Campbell, 13-130 (La.App. 5 Cir. 10/30/13); 128 So.3d 1137, 1142. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” Id.

Defendant’s main argument on appeal is that Dr. Jackson’s credibility was elevated in the eyes of the jury by the fact she rendered aid to the ill juror. We disagree. Dr. Jackson’s credentials as a doctor had already been established. The fact she rendered aid in a medical emergency is nothing more than what is | ^expected from a doctor. Accordingly, we do not find Dr. Jackson’s credibility was elevated by her reaction to an emergency situation.

Further, we note that Dr. Jackson’s credibility was bolstered by the corroboration of her testimony by other evidence. In addition to Dr. Jackson’s testimony, the State presented testimony of the victim through her CAC interview and her live testimony at trial. In her testimony, the victim stated that Defendant had hurt her and identified Defendant in court as the person who had hurt her. She described how Defendant had put his “thing” in her “pee part” and her “butt.” Detective Syni-gal testified that she was able to speak with the victim after surgery, and the victim provided her with information consistent with what Dr. Jackson had told Detective Synigal. Additionally, Dr. Eeg, who performed the surgery, testified regarding the victim’s injuries and stated how her injuries were consistent with penile/vaginal penetration. Furthermore, Defendant admitted in his statement that he had “done everything that M and the doctors said.”

Based on this overwhelming evidence of Defendant’s guilt, any error in failing to grant a mistrial under the circumstances was harmless. Specifically, we find that Dr. Jackson’s act of briefly rendering aid to a juror in the midst of a medical emergency by holding his head and checking his pulse was surely unattributable to the guilty verdict in light of the overwhelming evidence of Defendant’s guilt.

Reference to Victim as a “Protected Person”

Defendant further contends a mistrial was warranted when the trial court referred to the victim as a “protected person” who “should be treated accordingly,” and specifically noted the admonition applied to the defense. Defendant argues that this was an improper comment on the evidence, which bolstered the victim’s credibility and warned against Defendant’s exercise of his right of confrontation.

11fiWhen M was called to testify at trial, she had an extremely difficult time. She initially did not answer any questions posed to her. After a bench conference, the prosecutor was allowed to kneel next to M, who was crying, with a handheld microphone in an attempt to elicit M’s testimony. Upon Defendant’s objection to the situation, a 15-minute recess was taken, during which time Defendant moved for a mistrial. The trial court denied the mistrial, finding M’s emotional display did not warrant a mistrial. The court noted M’s young age and her designation as a protected person by the legislature for purposes of live feed testimony under La. R.S. 15:283. The trial court stated that it would resort to such technology if needed. Thereafter, the State advised that M was willing and ready to testify. When court reconvened, the trial court stated, “I remind the State once again this is a protected person, she should be treated accordingly.” The trial court then stated, “That references [sic] to the defense also, as defined by statute,” warranting another motion for a mistrial by Defendant, who claimed the label brought M to a different level as a witness than other witnesses who had testified in the case. The trial court denied the mistrial.

Under La.C.Cr.P. art. 772, a judge shall not comment upon the facts of the case, the testimony of any witness, or give an opinion as to what has been proven, not proven, or refuted. We do not find the trial court’s reference to the victim as a “protected person” was an improper comment on the evidence or an expression of the trial judge’s opinion as it was an accurate statement of the law. We further find any error in referring to M as a “protected person” was harmless in light of the [^overwhelming evidence of Defendant’s guilt, i.e., his confession and the physical evidence.

To the extent Defendant argues that the reference to the victim as a “protected person” was a threat against his right to confrontation, we find Defendant failed to raise this argument in the trial court and, thus, is precluded from raising it for the first time on appeal. See La. C.Cr.P. art. 841; State v. Snyder, 12-896 (La.App. 5 Cir. 10/9/13); 128 So.3d 370, 382-83 (“A new .basis for a claim, even if it would be meritorious, cannot be raised for the first time on appeal.”).

Prejudicial Illustrations during Voir Dire

In his pro se supplemental brief, Defendant argues that the prosecutor’s “prejudicial illustration” to the jury about the charged offenses during voir dire warranted a mistrial.

To preserve the right to appellate review of an alleged trial court error, a party must state a contemporaneous objection with the occurrence of the alleged error as well as the grounds for the objection. La.C.Cr.P. art. 841(A); State v. Enclard, 03-283 (La.App. 5 Cir.6/19/03); 850 So.2d 845, 853. The purpose behind the contemporaneous objection rule is to put the trial court on notice of an alleged irregularity so that it may cure the problem. It is also intended to prevent the Defendant from gambling for a favorable verdict and then resorting to appeal on errors that might have easily been corrected by an objection. Id.

The record does not reflect any objection by Defendant to any of the remarks upon which Defendant bases this assignment of error. Accordingly, because 118Pefendant failed to object to the comments at issue and failed to move for a mistrial at that time, we find the issue has not been properly preserved for review on appeal.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), and note errors in the State of Louisiana Uniform Commitment Order that require correction. Specifically, the Uniform Commitment Order in the record incorrectly shows the date of the charged offenses as July 11, 2011, when the actual date of the offenses as alleged in the indictment and proven at trial was July 10, 2011. Additionally, the Order incorrectly reflects that Defendant was adjudicated on April 22, 2013, when he was actually adjudicated on March 21, 2013.

Accordingly, we remand this case for correction of the Uniform Commitment Order to accurately reflect that the date of the offense was July 10, 2011 and that Defendant was adjudicated on March 21, 2013. After correction, the Clerk of Court for the 24th Judicial District Court is ordered to transmit the Uniform Commitment Order to the officer in charge of the institution to which Defendant has been sentenced and the Department of Correction’s Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06); 937 So.2d 846 (per curiam); State v. Long, 12-184 (La.App. 5 Cir. 12/11/12); 106 So.3d 1136, 1142.

DECREE

Defendant’s convictions and sentences for aggravated rape and sexual battery are affirmed. We find no reversible error in the trial court’s denial of | ^Defendant’s motions for mistrial. This matter is remanded to the trial court for correction of the Uniform Commitment Order as noted above.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF THE COMMITMENT.

      .Initials are used under the authority of La. R.S. 46:1844(W)(3), which allows the Court to identify a crime victim who is a minor or a victim of a sex offense by using his or her initials. Further, this Court has adopted a policy that this Court’s published work will use only initials to identify the victim and any defendant or witness whose name can lead to the victim’s identity (i.e., parent, sibling, or relative with the same last name as the victim). See State v. E.J.M. III, 12-774 (La.App. 5 Cir. 5/23/13); 119 So.3d 648, 652, n. 1. Compare State v. R.W.B., 12-453 (La.12/4/12); 105 So.3d 54.

      . J testified that M started calling Defendant "Daddy” after her 10-month-old daughter that she had with Defendant was born. J clarified that Defendant is not M's biological father.

      . No DNA was identified from the rape kit. Dr. Jackson gave possible explanations for the lack of DNA, citing the extensive amount of bleeding, the wiping of the blood, the fact M had urinated since the incident, and the fact M had been put into a bath after the incident and prior to the collection of evidence.

      . Defendant lived with J and M in an apartment located in Kenner.

      . La.C.Cr.P. art. 770 mandates a mistrial upon motion of a defendant when the judge, district attorney, or a court official makes a remark or comment within the hearing of the jury during trial that refers directly or indirectly to (1) race, religion, color or national origin if the remark is irrelevant and might create prejudice against the defendant in the mind of the jury; (2) inadmissible other crimes committed or alleged to have been committed by the defendant; (3) the failure of the defendant to testify in his own defense; or (4) the refusal of the judge to direct a verdict.

      . La.C.Cr.P. art. 771 provides that the trial court may grant a mistrial, if an admonition is insufficient to assure the defendant a fair trial, when an irrelevant remark or comment made during trial is of such a nature that might create prejudice against the defendant or the State in the mind of the jury when the comment is made by (1) the judge, district attorney, or a court official and is not within the scope of Article 770; or (2) a witness or person other than the judge, district attorney, or a court official, regardless of whether the comment is within the scope of Article 770.

      . The trial court noted that the prosecutor was his regular prosecutor who the court saw quite often.

      . La. R.S. 15:283(A) provides that a court “may order that the testimony of a protected person who may have been a ... victim of a crime be taken in a room other than the courtroom and be simultaneously televised by closed circuit television to the court and jury” when the court makes a finding of necessity based on certain circumstances. A “protected person” is defined as a victim of crime who is under the age of 17. La. R.S. 15:283(E)(1).

      . See also State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97); 703 So.2d 63, 77, writ denied, 98-264 (La.6/19/98); 719 So.2d 481. In Winfrey, the defendant argued on appeal that the trial court had allowed the prosecutor to go beyond the scope of cross-examination on redirect. He also argued on appeal that the testimony was based on inadmissible hearsay. This Court found that the defendant had not raised the issue of redirect testimony exceeding the scope of cross-examination at trial but only argued the testimony was based on hearsay. Because a new basis for an objection may not be raised for the first time on appeal, this Court limited its analysis to the issue of hearsay.

      . The record shows Defendant was sentenced, not adjudicated, on April 22, 2013.