author: HARRISON, Judge Pro Tern.

text:
    Patricia Carroll CROCKHAM, Plaintiff-Appellant v. Dr. David THOMPSON, Dr. James, Ewlynn Ball, Jr. and Richardson Medical Center, Defendants-Appellees.
    No. 47,505-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      J. Antonio Tramontana, Monroe, LA, for Plaintiff-Appellant.
    Hammond & Sills, by Elmer G. Noah, II, Monroe, LA, for Defendant-Appellee David Thompson, M.D.
    Watson, Blanche, Wilson & Posner, Baton Rouge, LA, by Robert W. Robison, Jr., for Defendant-Appellee Richardson Medical Center.
    Before MOORE, LOLLEY and HARRISON (Pro Tempore), JJ.
   HARRISON, Judge Pro Tern.

|, The plaintiff, Patricia Carroll Crock-ham, appeals from a jury verdict and trial court judgment rejecting her medical malpractice claims against Dr. David Thompson and Richardson Medical Center (“RMC”). The claims arose from the death of the plaintiffs mother, Stella Carroll. For the following reasons, we affirm.

FACTS

Ms. Carroll was 68 years old and had been a paraplegic for 20 years, following surgery on her spine. She was wheelchair-bound. For several years prior to her death, she frequently had bowel obstructions. On February 17, 2006, she was vomiting, had shortness of breath, fever, constipation, and sweating. She had thrown up her medications that morning. At 8:00 a.m., Ms. Crockham had her mother taken by ambulance to the emergency room of RMC. Ms. Carroll had not had a bowel movement in four days.

A fecal impaction was removed. Ms. Carroll was released to return home. Her symptoms did not improve, and Ms. Crock-ham had her mother transported to the emergency room at 12:30 p.m. that day. Her abdomen was large and distended. She was discharged to return home with a laxative.

When Ms. Carroll failed to improve, Ms. Crockham had her mother transported to the emergency room at 8:30 p.m. that same day. A different doctor was on duty who called Dr. Thompson, Ms. Carroll’s longtime treating physician. Ms. Carroll was admitted to the hospital under Dr. Thompson’s care.

12After Ms. Carroll arrived on the hospital floor, a nurse notified Dr. Thompson that the patient’s blood pressure was elevated; the reading was 190/122. Dr. Thompson ordered a nasogastric (“NG”) tube for nausea and prescribed blood pressure medication to be given orally. The next day, Ms. Carroll suffered a brain hemorrhage allegedly caused by her high blood pressure. She was placed in the intensive care unit (“ICU”) on life support. On February 21, 2006, her family had her removed from life support and she died.

The plaintiff submitted her claims of malpractice against Dr. Thompson, RMC, and the first emergency room physician, Dr. James Ewlynn Ball, Jr., to a medical review panel. On March 16, 2010, the medical review panel unanimously found that Dr. Thompson was negligent and breached the applicable standard of care. The panel found that Dr. Ball and RMC did not breach the standard of care. On May 20, 2010, Ms. Crockham filed suit against Dr. Thompson, RMC, and Dr. Ball.

She asserted wrongful death and survival actions and claimed damages for loss of love, support, and affection. Dr. Ball was released from the suit on a motion for summary judgment. The claims against Dr. Thompson and RMC were tried before a jury in August 2011. On August 26, 2011, the 12-person jury returned a unanimous verdict finding that Dr. Thompson and RMC were not at fault in causing the death of Ms. Carroll. On September 26, 2011, the trial court filed a judgment making the verdict of the jury the judgment of the court. | ¡¡The trial court denied Ms. Crockham’s motions for judgment notwithstanding the verdict and for new trial. The plaintiff appealed.

FAULT OF DR. THOMPSON

The plaintiff contends that the jury erred in finding that Dr. Thompson was not at fault and that his fault was not a substantial factor in causing the death of Ms. Carroll. Ms. Crockham argues that Dr. Thompson breached the applicable standard of care in numerous ways. She claims that he should have admitted her mother to the ICU, should have seen her upon her admission to the hospital, should have come to the hospital when notified that Ms. Carroll’s blood pressure was critically high, and should have made rounds the next morning. Ms. Crockham alleges that Dr. Thompson breached the standard of care by failing to establish proper parameters regarding when the nurses should contact him regarding Ms. Carroll’s blood pressure, by failing to follow up with a phone call to determine if the blood pressure medication was working, and by ordering the administration of oral blood pressure medicine where the patient had been suffering from nausea. The plaintiff argues that Ms. Carroll’s blood pressure medication should have been given by the intravenous (“IV”) method, which would have bypassed her nonfunetioning bowel. According to Ms. Crockham, her mother’s blood pressure was never controlled and caused her fatal stroke. These arguments are without merit.

Legal Principles

A plaintiff bears the burden of proving that a doctor committed malpractice. Harper v. Minor, 46,871 (La.App.2d Cir.2/1/12), 86 So.3d 690; writs denied, 2012-0524 (La.4/27/12), 86 So.3d 629, 2012-0528 (La.4/27/12), 86 So.3d 632. La. R.S. 9:2794(A) provides in pertinent part:

In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
(1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or faded to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

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 General Hospital, 2010-0387 (La.5/10/11), 63 So.3d 87; Harper v. Minor, supra. A physician is not held to a standard of absolute precision. Rather, his conduct and judgment are evaluated in terms of reasonableness under the existing circumstances, not on the basis of hindsight. Lowrey v. Borders, 43,675 (La.App.2d Cir.12/10/08), 1 So.3d 635, writ denied, 2009-0043 (La.3/6/09), 3 So.3d 487. See also Hays v. Christus Schumpert Northern Louisiana, 46,408 (La.App.2d Cir.9/21/11), 72 So.3d 955.

The manifest error standard applies to the review of medical malpractice cases. Wyatt v. Hendrix, 43,559 (La.App.2d Cir.11/5/08), 998 So.2d 233. 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. Stobart v. State Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

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. Simmons v. Christus Schumpert Medical Center, 45,908 (La.App.2d Cir.6/15/11), 71 So.3d 407, writs denied, 2011-1592 (La.10/7/11), 71 So.3d 317, 2011-1591 (La.10/7/11), 71 So.3d 318.

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. Bailey v. Donley, 44,919 (La.App.2d Cir.12/9/09), 26 So.3d 987; Turner v. Stassi, 33,022 (La.App.2d Cir.5/10/00), 759 So.2d 299; Pinnick v. Louisiana State University Medical Center, 30,263 (La.App.2d Cir.2/25/98), 707 So.2d 1050.

The opinion of the medical review panel is admissible, expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit. Nevertheless, as any expert testimony or evidence, the medical review panel opinion is subject to review and contestation by an opposing viewpoint. The opinion, therefore, can be used by either the patient or the qualified healthcare provider, and the jury, as trier of fact, is free to accept or reject any portion or all of the opinion. McGlothlin v. Christus St. Patrick Hospital, 2010-2775 (La.7/1/11), 65 So.3d 1218.

The appellate court must not reweigh the evidence or substitute its own factual finding because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270; Hays v. Christus Schumpert Northern Louisiana, supra. 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. Stobart v. State Through Department of Transportation and Development, supra.

Discussion

The medical review panel in this case was made up of Dr. Todd Thoma, Dr. Louie V. Crook, Jr., and Dr. R. Brian Harris. The panel unanimously found that Dr. Thompson breached the standard of care in this case. The medical review panel opinion states:

(1) At approximately 10:30 p.m. on February 17, 2006 Dr. Mena, the emergency room physician at Richardson Medical |7Center at that time, called Dr. Thompson and discussed Ms. Carroll’s condition with Dr. Thompson. Stella Carroll had been a patient of Dr. Thompson’s for many years. Dr. Thompson gave Dr. Mena permission to admit the patient to the hospital under Dr. Thompson’s care. Shortly after the patient arrived on the floor the patient’s blood pressure was 190/122 and the nursing staff notified Dr. Thompson of this elevated blood pressure. Dr. Thompson then gave orders over the telephone to hold the patient’s enema and he ordered Clonidine 0.2 mg by mouth every 4 hours to be given if her diastolic blood pressure was greater than 100. Dr. Thompson also ordered an NG tube to continuous suction if the patient vomited or continued to be nauseated. These orders were insufficient to address the patient’s medical condition and the patient’s multiple medical needs. Appropriate limits for when Dr. Thompson should have been notified regarding abnormal vital signs were not given by him. Parameters needed to be set by Dr. Thompson as to when he should be notified regarding abnormal blood pressure and other vital signs. Additionally, due to the patient’s gastrointestinal dysfunction, Dr. Thompson should have ordered a way to have the patient’s medications, including her routine medications, administered to her other than orally or through the NG tube.
(2) The aforementioned deviations below the standard of care resulted in an increased risk of the patient suffering an intracranial event.

Dr. Thoma testified at the trial for the plaintiff as an expert in emergency medicine, the treatment of high blood pressure, and internal medicine. Dr. Tho-ma stated that Dr. Thompson breached the applicable standard of care in several ways. He failed to give the nursing staff parameters as to when he should be notified regarding abnormal blood pressure readings. According to Dr. Thoma, Dr. Thompson should have instructed the nurses to call him if the patient’s blood pressure was greater than 140/90. Dr. Thoma testified that Dr. Thompson should not have ordered that Ms. Carroll’s medication be given orally or through her NG tube. He stated that the medication could have been given through an IV or |swith a transdermal patch. He noted that, even the next morning, no arrangements were made for the patient to receive any of her medications by any method other than orally. He said that her condition should have been monitored to make sure that her blood pressure was under adequate control and if not, alternative treatments should have been given.

Dr. Thoma stated that he found no fault with Dr. Thompson for not coming to the hospital the night Ms. Carroll was admitted, but that he should have gone to the room earlier the next day. He did not go to Ms. Carroll’s room until after she had the stroke on the afternoon of February 18. Dr. Thoma testified that the standard of care required adequate treatment of Ms. Carroll’s hypertension. The treatment given in this case was not within the standard of care. According to Dr. Tho-ma, the failure to adequately treat Ms. Carroll’s blood pressure contributed to the stroke which caused her death.

Dr. Terrence Baker testified for the plaintiff as an expert in severe high blood pressure, family practice, and emergency medicine. Dr. Baker practices at Good Samaritan Hospital in Baltimore, Maryland. He examined Ms. Carroll’s medical and hospital records and concluded that Dr. Thompson breached the applicable standard of care in several ways. Dr. Baker said that Dr. Thompson should have moved Ms. Carroll to a higher level of care in the hospital when the nurses notified him that her blood pressure was severely high. He stated that if Ms. Carroll had been placed in the ICU, she would have had more frequent blood pressure monitoring and a lower patient-to-nurse ratio. Dr. Baker maintained that Dr. Thompson | cifailed to recognize that inserting an NG tube and then putting a blood pressure pill into the tube was not sufficient treatment for high blood pressure. He also noted that oral administration of blood pressure medication would not be effective because Ms. Carroll’s bowel was not working or was not working very well. According to Dr. Baker, the blood pressure medication should have been given in an IV, through a skin patch, or through an injection. He said the standard of care required using the safest method of administration of blood pressure medicine. He stated that giving small, frequent amounts of blood pressure medication through an IV is more controllable than giving a dose through a stomach that is not functioning well.

Dr. Baker testified that Dr. Thompson should have followed up to determine if the blood pressure medication was working. Dr. Baker said that the standard of care required Dr. Thompson to see Ms. Carroll on the morning after her admission to the hospital. Dr. Baker opined that if Dr. Thompson had made rounds in the morning, he would have done a physical examination of the patient and would have recognized that the oral blood pressure medication was not working. This would have changed the outcome in this case. Dr. Baker stated that the nursing notes on the morning after Ms. Carroll’s admission to the hospital showed that she had high-pitched bowel sounds indicating poor functioning and the inability to absorb reliably. Also, at approximately 8:30 a.m., Ms. Carroll’s blood pressure reading was 210/110. At noon, her blood pressure was 174/84, but Dr. Baker termed this an aberrant reading.

|inDr. Baker pointed out that Dr. Thompson did not dictate the history and physical for the hospital record in this case until several days later. He indicated that he saw Ms. Carroll before he actually did. The first time he saw her was on the afternoon of February 18, after she began having her stroke. At that time, she was not responsive. However, the medical record stated that the patient was “pleasant, awake, alert, oriented and attentive” and appeared to be “in no acute distress.”

The hospital chart indicates that Dr. Thompson actually examined Ms. Carroll’s abdomen and said that her eyes were equally round and reactive. In fact, the first time he saw her was after the stroke and one of her pupils was extremely dilated. Dr. Baker testified that the discharge summary, made after Ms. Carroll’s death, omitted important information about her blood pressure.

Dr. Euil Eugene Luther testified as an expert in family practice on behalf of Dr. Thompson. He has been an associate professor of family medicine at the LSU Health Science Center at E.A. Conway Medical Center since 1994. Dr. Luther noted that Ms. Carroll’s chief complaints were nausea, vomiting, and constipation. Her fecal impaction had been removed on her first visit to the emergency room. By her third visit, she had adequate bowel sounds and there were indications that her bowels were beginning to function. According to Dr. Luther, when Ms. Carroll was admitted to the hospital under Dr. Thompson’s care, he gave appropriate orders.

| uWhen Dr. Thompson was informed by the nursing staff that Ms. Carroll’s blood pressure was 190/122, he ordered that she be given clonidine by mouth every four hours as long as her diastolic pressure was greater than 100. He also stopped a previous order for an enema that could have increased the patient’s blood pressure. Because there was plenty of evidence of activity in the patient’s abdomen, Dr. Luther said that it was appropriate to give an oral trial of clonidine.

Dr. Luther stated that using IV medication posed the risk of lowering the blood pressure too much. With an NG tube in place, the proper method of administering oral medication was to crush the pill, mix it with water, clamp the NG tube for 45 minutes to one hour, flush the medication through the tube, and give the stomach and intestines a chance to work.

Dr. Luther noted evidence in the nursing notes that, although Ms. Carroll’s blood pressure was “not to the level you would like it,” it was coming down. Each time the clonidine was given, there was a drop in the blood pressure. When asked about Ms. Carroll’s blood pressure reading of 210/110 at 8:25 a.m. on February 18, Dr. Luther said it was time for another dose of clonidine, so it was not unusual for the blood pressure to jump up. Dr. Luther noted that on several occasions, the patient’s blood pressure was found to be elevated. She was given the clonidine and the blood pressure would come down some. By noon, her blood pressure was 174/84, which was evidence of a good response and improving control.

Dr. Luther saw no reason for Dr. Thompson to come to the hospital when Ms. Carroll was admitted or to admit her to the ICU. Dr. Luther did |12not see a need for the nurses to continue to call Dr. Thompson throughout the night. Further, there was no need for Dr. Thompson to call during the night to get Ms. Carroll’s blood pressure readings.

Dr. Luther was not critical of Dr. Thompson for failing to make morning rounds. Dr. Luther said if Dr. Thompson had gone to the patient’s room in the morning after her admission to the hospital, he would have seen a patient who was improving. Dr. Luther testified that the standard of care requires a doctor to do rounds once a day. It does not matter what time of the day it is done.

When questioned about the alleged inaccuracies in the physical and history dictated by Dr. Thompson, Dr. Luther did not perceive any intent to defraud or deceive. Dr. Luther testified that many doctors use information from nurses and emergency room doctors in writing the history and physical in the chart. Dr. Luther said it was clear from the records when Dr. Thompson’s first interaction with Ms. Carroll occurred.

Dr. Luther was questioned about several publications dealing with the treatment of hypertension. One article was “Evaluation and Treatment of Severe Asymptomatic Hypertension” published in the American Family Physician. This article referenced the “Seventh Report of the Joint National Committee on the Prevention, Detection, Evaluation and Treatment of High Blood Pressure.” A third publication was “Management of severe asymptomatic hypertension (hypertensive urgencies).” Dr. Luther stated that severely elevated high blood pressure is 180/110 or greater. An emergency would include symptoms such as headache, chest pain, or Lqshortness of breath with evidence of end-organ damage, which is hypertension that affects the functioning of internal organs such as the heart and kidneys. Severe hypertension with no symptoms and no end-organ damage constitutes an urgency. Dr. Luther testified that Ms. Carroll’s situation was a hypertensive urgency, not an emergency. According to the literature, with a hypertensive urgency, Dr. Thompson had hours to days to lower the blood pressure rather than minutes to hours. The goal was to lower the blood pressure to 160/100 over a course of hours to days. Dr. Luther said that lowering the blood pressure too quickly posed a risk of a heart attack or stroke. One of the medications recommended in the literature was clonidine. Dr. Luther stated that use of an oral medication rather than IV medication was acceptable under the circumstances.

On cross-examination, Dr. Luther was asked about several recommendations in the publications that the plaintiff contended were not followed by Dr. Thompson. One recommendation was to establish a cardiovascular risk profile, because patients with cardiovascular risk factors should be treated more aggressively. Dr. Luther said that, even though Dr. Thompson did not do a cardiovascular risk profile, he knew Ms. Carroll well and had gotten an update on her condition from the emergency room physician. Dr. Luther acknowledged that the cardiopulmonary, neurologic and funduscopic examinations recommended by the articles were not done in this case. Dr. Luther said that these were done by the emergency room doctor.

|14Pr. Luther was asked on cross-examination whether it was a breach of the standard of care to give oral medication if the bowel is not working and the patient has intractable vomiting. Dr. Luther stated that Ms. Carroll’s fecal impaction had been removed 12 hours earlier, and that by the time she was admitted to the hospital, her stomach was working fairly well. Dr. Luther said that in his expert opinion, Dr. Thompson applied a recognized treatment that met the standard of care for Ms. Carroll. He found that the treatment was adequate, given the situation, and that Dr. Thompson did what he needed to do.

Dr. Thompson testified at the trial. He had been in family practice in Rayville, Louisiana, for many years and had treated Ms. Carroll for approximately 20 years. He was familiar with her medical problems which arose in the mid-1980s and resulted in her paralysis. He outlined other medical problems that Ms. Carroll had experienced and noted that she had a stroke in the 1980s or 1990s which resulted in weakness in the left upper extremity. Dr. Thompson said that over the past several years, Ms. Carroll had been hospitalized 20 times. Home health personnel went to Ms. Carroll’s house three or four times a week.

Regarding the facts at issue here, Dr. Thompson testified that he was not notified until Ms. Carroll’s third visit to the emergency room. He admitted her to the hospital and ordered an NG tube, a saline IV, an enema, potassium, and most of her regular medications. The nurses on the floor called him about Ms. Carroll’s high blood pressure and Dr. Thompson told them to hold the enema and to give her clonidine, a drug he found to be safe|1Band effective for lowering blood pressure. He ordered that the clonidine be given every four hours as long as the diastolic blood pressure was greater than 100.

Dr. Thompson had treated Ms. Carroll for bowel problems in the past and he knew that her x-rays in this instance showed that she no longer had a bowel obstruction. He thought her bowel was getting back to normal. He felt that her blood pressure was properly classified as a hypertensive urgency and not an emergency. She did not have end-organ damage which would have involved the brain, kidneys, and heart.

Dr. Thompson said that he did not see a reason to go to the hospital when Ms. Carroll was admitted. He knew that the nurses would call him if the need arose. Dr. Thompson stated that it was acceptable to administer the medication through the NG tube. He did not go to the patient’s room on the morning of February 18, because her blood pressure was trending down and the nurses had not notified him of any worsening of Ms. Carroll’s condition. He found it more convenient to do hospital rounds at lunch after the patients had received their morning care.

He went to Ms. Carroll’s room that afternoon as soon as he was contacted. She was having seizure activity and her right pupil was extremely dilated, indicating brain damage. She was transferred to the ICU.

A CT scan of her brain showed a large bleed in the mid-brain on the left side, consistent with a stroke. Dr. Thompson said the cause of the intracranial bleed was her longstanding chronic hypertension.

|inDr. Thompson testified that he disagreed with the medical review panel opinion and Dr. Thoma’s testimony. Dr. Thompson pointed out that Dr. Thoma is an emergency room doctor and has a different practice from a family practice physician. He said that ER doctors tend to take a more aggressive approach. Dr. Thompson said that IV blood pressure medications can lower blood pressure too much. According to Dr. Thompson, the standard of care required a slow approach to lowering blood pressure.

When asked about the articles on hypertension testified to by Dr. Luther, and whether Dr. Thompson should have performed a history and physical exam when Ms. Carroll was admitted, as well as a cardiovascular, neurological, and fundu-scopic examination, Dr. Thompson said he was acquainted with Ms. Carroll’s risk factors and that she had been examined in the emergency room. Dr. Thompson stated that he was very familiar with Ms. Carroll, followed her almost weekly on home health reports and was up-to-date on her cardiovascular risk profile. Regarding the funduscopic examination, Dr. Thompson stated that he had examined her eyes “a gillion times.”

When questioned about giving oral medication with Ms. Carroll’s bowel problems, Dr. Thompson testified that he thought the bowel was coming around and that giving blood pressure medicine by mouth was in accordance with the literature and the methods he was taught for dealing with this type of problem. He said he did not consider using a skin patch to | ^administer blood pressure medication because Ms. Carroll was experiencing some sweating and he did not think the patch would stay on.

Dr. Thompson testified that he thought he had Ms. Carroll’s blood pressure under control. He stated, “it was a steady, safe, slow decline throughout the a.m. hours and ... she’d even gotten her home medications and by 12:00, it was right where it should have been in a patient like this.”

Dr. Thompson stated that there was not a shred of evidence in the chart that Ms. Carroll was experiencing end-organ damage. Her blood pressure readings throughout the night were not good, but they were adequate. He said that if the nurses had called him in the night, he would have continued the same treatment.

Dr. Thompson was questioned about the history and physical dictated in the patient’s hospital chart. He said he gleaned the information from the emergency room chart and that everyone does the patient description in the way he did it. Dr. Thompson said that he did not think he made any mistakes in his treatment of Ms. Carroll.

In this case, the plaintiff presented expert testimony to establish that Dr. Thompson breached the standard of care in his treatment of Ms. Carroll by failing to come to the hospital to examine her on her admission to the hospital, failing to admit her to the ICU, failing to establish her cardiovascular risk profile and failing to make a cardiopulmonary, neurological, and funduscopic evaluation. The plaintiff also presented evidence to show that Dr. Thompson breached the standard of care by ordering that Ms. Carroll’s blood pressure medication be given orally when | isher bowel was not working well, in failing to set proper parameters for the nurses to contact him regarding the blood pressure, and in failing to follow up to determine whether the blood pressure was coming down sufficiently. The plaintiff sought to show further breaches in the standard of care when Dr. Thompson did not make rounds and see Ms. Carroll the morning after her hospital admission.

Dr. Thompson presented evidence and testimony to establish that Ms. Carroll was experiencing a hypertensive urgency and not a hypertensive emergency, and that his treatment of her condition was in conformity with the medical literature. Dr. Thompson presented his own testimony and expert testimony to show that there was no need to admit Ms. Carroll to the ICU or for Dr. Thompson to come to the hospital on the night of her admission. He presented evidence that the patient was examined by the emergency room doctor and that Dr. Thompson was well acquainted with Ms. Carroll’s cardiovascular risk factors. He also presented testimony that Ms. Carroll’s bowel was functioning adequately and that ordering that the blood pressure medication be administered orally was a safe and effective method. Dr. Thompson presented testimony that Ms. Carroll was responding to the blood pressure medication and that he did not breach the standard of care by failing to see Ms. Carroll on the morning after her admission to the hospital.

The jury in this case weighed the evidence and made determinations regarding the credibility of witnesses. Given the two permissible views of the evidence in this case, the jury’s choice to accept Dr. Thompson’s view [19that he did not breach the standard of care was reasonable and was not manifestly erroneous or clearly wrong. Therefore, we affirm the jury verdict and the trial court judgment finding that Dr. Thompson did not breach the standard of care and was not at fault in Ms. Carroll’s death.

TESTIMONY OF DR. LUTHER

The plaintiff argues that the jury erred in relying on the opinions of Dr. Luther, when those opinions were unsupported and had no factual basis. Ms. Crockham contends that Dr. Luther was a family practice instructor at LSU, but never actually practiced family medicine and did not know what the applicable standard of care was. This argument is without merit.

Legal Principles

In order for an expert opinion to be valid and merit much weight, the facts upon which that opinion is based must be substantiated by the record. When the expert opinion is based upon facts not supported by the record, the opinion may be rejected. Brown v. Eppinette, 36,405 (La.App.2d Cir.12/18/02), 833 So.2d 1268; Barry v. Plaquemine Towing Corporation, 96-0979 (La.App.1st Cir.8/4/97), 698 So.2d 1017, writ denied, 97-2579 (La.1/9/98), 705 So.2d 1102; Robin v. Mississippi Fast Freight Company, Inc., 97-2556 (La.App.1st Cir.12/28/98), 744 So.2d 42, writ denied, 99-0688, (La.4/30/99), 741 So.2d 16; Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 229.

Discussion

Many of the cases cited by Ms. Crock-ham deal with expert opinion testimony based upon hypothetical questions that were not based upon facts ^established in the record. That is not the situation presented in this matter. Dr. Luther’s testimony is set forth above. The plaintiff argues that the jury should not have accepted Dr. Luther’s testimony because he had never practiced outside a hospital, was not experienced in private family practice medicine and did not know what the standard of care was. The record demonstrates that Dr. Luther had years of experience in family practice medicine in the hospital setting, including training family practice residents. The plaintiff did not object to Dr. Luther’s qualifications to testify as an expert in family practice medicine. Any questions the plaintiff had regarding Dr. Luther’s experience or the validity of his opinions were fully explored and presented to the jury by the plaintiffs counsel during cross-examination.

The plaintiffs argument that Dr. Luther did not know what the standard of care was is not supported by the record. The plaintiffs counsel extensively questioned Dr. Luther about what the standard of care required in this case and whether it was breached.

The plaintiff argues that Dr. Thompson did not follow the recommendations for care in the medical literature discussed in Dr. Luther’s testimony in determining whether Ms. Carroll’s hypertension was symptomatic or asymptomatic and that Dr. Luther did not give any reasons why the administration of oral blood pressure medication was within the standard of care in this case. As discussed above, Dr. Luther testified that, by the time Ms. Carroll was admitted to the hospital, her fecal impaction had been removed 12 hours earlier and there were indications that her bowels were |2ibeginning to function. Because of these factors, Dr. Luther said it was appropriate to give oral blood pressure medication which seemed to be working to lower the patient’s blood pressure. Dr. Luther stated that, although Dr. Thompson did not do a cardiopulmonary risk profile on Ms. Carroll or a cardiopulmonary, neurological, or funduscopic examination, Dr. Thompson was well acquainted with Ms. Carroll, knew her risk factors and had the benefit of the emergency room physician’s examination of her.

The plaintiff argues that, according to the medical literature used during Dr. Luther’s testimony, when Ms. Carroll arrived on the hospital floor and was found to have severely elevated blood pressure, Dr. Thompson had a new obligation to go to the hospital to examine her. After extensive questioning on this subject, Dr. Luther was asked if the standard of care required that Dr. Thompson perform a thorough evaluation of the patient once he thought she was in severe hypertension. Dr. Luther replied, “No, sir.”

Under the facts of this case, Dr. Luther gave sufficient reasons for his opinions. The decision to accept or reject his testimony rested with the finder of fact. The jury was not manifestly erroneous or clearly wrong in accepting his testimony.

BREACHES BY RICHARDSON MEDICAL CENTER

The plaintiff contends that the jury erred in finding that the actions of RMC, through its nurses and staff, did not constitute fault that was a substantial factor in the death of Ms. Carroll. Ms. Crockham claims that the nurses should have called Dr. Thompson again when Ms. Carroll’s diastolic 122blood pressure failed to fall below 100. She claims the nurses breached the standard of care by failing to recognize that the treatment ordered by Dr. Thompson was not working to lower Ms. Carroll’s blood pressure sufficiently. The plaintiff contends that the nurses breached the standard of care by allowing Ms. Carroll to be cared for by an unsupervised registered nurse (“RN”) applicant, by administering medication through an NG tube without an order to do so, by not having a nursing plan of care for Ms. Carroll, and in failing to document assessments of the patient. She asserts that she presented expert testimony at trial to establish that these factors were breaches of the nursing standard of care. This argument is without merit.

Legal Principles

Malpractice claims against a hospital are subject to the general rules of proof applicable to any negligence action. Moore v. Willis-Knighton Medical Center, 31,203 (La.App.2d Cir.10/28/98), 720 So.2d 425. A plaintiff must prove that the defendant had a duty to protect against the risk involved, that the defendant breached its duty, and that the plaintiff’s injury was caused by the defendant’s conduct. Hays v. Christus Schumpert Northern Louisiana, supra. Hospitals are held to a national standard of care. The locality rule does not apply to hospitals. Henderson v. Homer Memorial Hospital, 40,585 (La.App.2d Cir.1/27/06), 920 So.2d 988, writ denied, 2006-0491 (La.5/5/06), 927 So.2d 316. Hospitals are bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. The mere fact that an injury occurs or an [^accident happens raises no presumption or inference of negligence on the part of the hospital. Hays v. Christus Schumpert Northern Louisiana, supra.

It is well settled that a hospital is liable for its employee’s negligence, including doctors and nurses, under the re-spondeat superior doctrine. Benefield v. Sibley, 43,317 (La.App.2d Cir.7/9/08), 988 So.2d 279, writs denied, 2008-2162, 2008-2210, (La.11/21/08), 996 So.2d 1107, 2008-2247 (La.11/21/08), 996 So.2d 1108; Wells v. Louisiana Department of Public Safety and Corrections, 46,428 (La.App.2d Cir.8/24/11), 72 So.3d 910, writ denied, 2011-2637 (La.2/10/12), 80 So.3d 474. 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, along with his or her best judgment, in the application of his or her skill to the case. Little v. Pou, 42,872 (La.App.2d Cir.1/30/08), 975 So.2d 666, writ denied, 2008-0806 (La.6/6/08), 983 So.2d 920.

Discussion

Regarding the nurses at RMC, the medical review panel did not find a breach in the standard of care. The medical review panel opinion stated:

(1) Throughout the emergency room treatment of Ms. Carroll on February 17, 2006 and her subsequent hospitalization the nurses appropriately followed all physician orders.
(2) Ms. Carroll was admitted to the floor at approximately 10:30 p.m. on February 17, 2006. Orders were initially given by Dr. Mena. About 10:45 p.m. the nurses took Ms. Carroll’s blood pressure which was 190/122. Dr. Thompson was ^notified of this reading and at approximately 11:25 p.m. Dr. Thompson gave telephone orders to hold the patient’s enema and he ordered Cloni-dine 0.2 mg by mouth every 4 hours to be given if her diastolic blood pressure was greater than 100. Dr. Thompson also ordered an NG tube to continuous suction if the patient vomited or continued to be nauseated. Pursuant to Dr. Thompson’s orders the nursing staff placed the patient on the NG tube and suctioned approximately 700 cc’s of fluid. At 12:30 a.m. the nursing staff administered the first dose of Clonidine as ordered by Dr. Thompson. During the following 12 hours the nurses appropriately monitored the patient’s blood pressure and administered the Clonidine as ordered by Dr. Thompson. During that time there was no change in the patient’s clinical status. Therefore it was within the standard of care for the nurses not to have called Dr. Thompson until approximately 2:05 p.m. when the patient’s clinical presentation significantly changed, at which time the nurses immediately contacted Dr. Thompson. Thereafter the nursing staff appropriately followed all physician orders.

Dr. Thoma testified that he did not see any breach of the standard of care by the hospital or the nurses in this case.

Dr. Baker testified that the nurses breached the standard of care by failing to recognize that the blood pressure treatment was not adequate and in thinking that there was improvement. Dr. Baker said that the nurses’ failure to put together and record a plan of care for high blood pressure was a breach in the standard of care.

He stated that the hospital did not have a policy for the administration of pills when a patient is on an NG tube. He said that a doctor’s order is required to crush pills and administer them through the NG tube. He found a breach in the standard of care where the hospital chart did not document how the pills were given. He stated that the chart did not document giving blood pressure medications throughout the night. He also noted that LaShelle Stubblefield, one of the nurses who cared for Ms. Carroll, was an |MRN applicant and another supervising nurse was required to cosign her nursing notes. This was not done in this case.

Dr. Baker testified that the nurses had the responsibility to call the doctor and report that the blood pressure medication was not working. He opined that the nurses never recognized the serious condition of the patient.

Patsy Malloy McHan, an RN, testified on behalf of the plaintiff as an expert in the general field of nursing. She disagreed with the medical review panel opinion that there was no breach in the standard of care by the nurses who took care of Ms. Carroll. She stated that it was below the standard of care to allow an RN applicant to care for a patient without supervision.

She found that the hospital did not have a policy for giving medication through an NG tube. She noted that an RN should know when the clonidine was not working. Because a lot of stomach fluid was removed when the NG tube was put in place, she claimed this showed that the patient was not able to absorb medication through her stomach. According to Ms. McHan, the nurses should have called Dr. Thompson again when he ordered that the blood pressure medicine be given by mouth.

Ms. Stubblefield, the RN applicant who cared for Ms. Carroll immediately after her hospitalization, testified by deposition that she had graduated from RN training in December 2005 and began working at RMC in January 2006. She had taken the RN licensing exam and was awaiting the results. She was working with a temporary nursing license. At RMC, Ms. Stub-blefield had undergone a three-week orientation and training 12f,program with an RN preceptor, Donna Radau. Ms. Radau was working on the floor with Ms. Stubblefield on the night that Ms. Carroll was admitted to the hospital. Ms. Stubblefield contacted Dr. Thompson when she discovered that the patient’s blood pressure was severely elevated. Dr. Thompson verbally gave orders for dealing with this condition.

Ms. Stubblefield was questioned about the lack of a specific order to give the blood pressure medication through the NG tube. She stated that there was no other way to do it. She said that checks of Ms. Carroll’s blood pressure showed that it appeared to be coming down.

Ruth Ann Graham, a licensed practical nurse (“LPN”), testified on behalf of RMC. Ms. Graham worked at RMC, was familiar with Ms. Carroll, and was on duty the night the patient was admitted to the hospital. She stated that Ms. Carroll would come into the hospital often, with the symptoms present in this case, and would get relief from an NG tube. The hospital chart showed that the NG tube removed 700 ccs of stomach fluid from Ms. Carroll. Ms. Graham outlined the procedures for administering medication through an NG tube, including shutting off the suction for about an hour, crushing the pill, mixing it with water in a syringe, and putting the mixture in the tube. Ms. Graham said that clonidine does not work fast and sometimes has to build up to work. She stated that, if the clonidine had not worked at all, the nurses would have contacted Dr. Thompson. When questioned about notes in the hospital chart that the clonidine was working, Ms. Graham testified that she did not say that the medication was completely effective; she said that it was “working.” Ms. Carroll’s blood [^pressure was checked every four hours. Ms. Graham’s last note in the chart was made at 6:00 a.m. on February 18. At that time, Ms. Carroll’s blood pressure had come down from 190/112 to 181/106.

Belinda Jane Holton was an RN at RMC. She testified that Ms. Carroll had been a patient numerous times over the years. Ms. Holton worked the day shift on February 18, when Ms. Carroll had her stroke. That morning, Ms. Carroll was feeling better. About 2:00 p.m., an LPN notified Ms. Holton that Ms. Carroll was having difficulty breathing. Ms. Holton said that the patient was unresponsive, she had seizure activity, and her eye position indicated a brain problem. Ms. Carroll’s blood pressure was 210/134. When questioned about the degree of supervision required for an RN applicant, Ms. Graham stated that a preceptor was not required. It was sufficient to have another RN on the floor.

The jury heard the testimony from the plaintiffs experts and from the nurses who were on duty during Ms. Carroll’s hospitalization. The jury also examined the evidence, including the hospital record and the medical review panel opinion, as well as hearing testimony from Dr. Thoma, a member of the medical review panel. The jury weighed the evidence and the testimony of the witnesses and found that there was no breach of the standard of care by RMC or by its nurses in this matter. This was a reasonable view of the evidence and testimony. The jury was not manifestly erroneous or clearly wrong. Accordingly, we affirm the jury’s verdict and the trial court judgment.

^CONCLUSION

For the reasons stated above, we affirm the jury verdict and the trial court judgment in favor of Dr. David Thompson and Richardson Medical Center, rejecting the claims of the plaintiff, Patricia Carroll Crockham, arising from the death of her mother, Stella Carroll. All costs in this court are assessed to the plaintiff.

AFFIRMED.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Rafael LOFTON, Appellant.
    No. 47,439-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Marcus Ray Pa-tillo, Assistant District Attorneys, for Ap-pellee.
    Before MOORE, LOLLEY and HARRISON (Pro Tempore), JJ.
   LOLLEY, J.

| defendant, Rafael Lofton, pled guilty to attempted second degree murder, violations of La. R.S. 14:27 and La. R.S. 14:30.1. He was ultimately sentenced to 20 years at hard labor, which sentence he now appeals. For the following reasons, we affirm his conviction and sentence.

Facts

Rafael Lofton was charged by bill of information with the attempted second degree murder of Rondell Hawk. Pursuant to a plea bargain that capped his sentence at 30 years and included the State’s agreement not to charge him as a habitual offender, he pled guilty as charged. At the guilty plea hearing, the trial court ordered a presentence investigation report (“PSI”).

On October 13, 2010, a letter from Lof-ton to the trial judge was filed in the record, wherein Lofton stated his desire to withdraw his guilty plea. Nonetheless, on November 15, 2010, the trial court conducted a sentencing hearing at which it noted reviewing the previously ordered PSI. Lofton was sentenced to 20 years at hard labor with credit for time served; however, the trial court made no mention of Lofton’s request to withdraw his plea. At the end of the sentencing hearing, Lof-ton stated that he was supposed to withdraw his plea; still, no inquiry or comment was made by the trial court.

Lofton appealed his sentence in proper person. On May 19, 2011, this Court issued an order noting that pursuant to an error patent review, we had discovered an outstanding timely motion by Lofton to withdraw his guilty plea. We noted that there was no indication either that the motion was waived, or that the trial court had conducted a hearing on the motion 12prior to sentencing. Accordingly, we found Lofton’s initial appeal premature, ordered the appeal dismissed, vacated the sentence, and remanded the case for hearing and ruling on the pending motion to withdraw the guilty plea.

On October 28, 2011, the trial court held a hearing as ordered by this Court, at which Lofton testified that when he previously pled guilty, he “didn’t have clear understanding what was going on with my case, and my previous private counselor didn’t put forth any effort to better my understanding.” He also claimed to have “performed under oath in vain, in God’s name, and I truly didn’t commit this crime of attempted second degree murder.”

The trial court reviewed the procedural history of the case, including the terms of the plea bargain agreement. It noted that Lofton’s former attorney was a respected member of the bar and stated its belief that Lofton had been given sufficient detail to completely understand the agreement that he was entering into. Concluding that Lofton had understood the ramifications of his prior guilty plea, the trial court denied Lofton’s request to withdraw his guilty plea, and a new sentencing hearing was scheduled.

At the second sentencing hearing, the trial court indicated that it had reviewed the PSI in accordance with the guidelines of La. C. Cr. P. art. 894.1. The trial court noted that the investigation in the case indicated that Lofton had fired two shots at a Rondell Hawk with the intent of causing great bodily harm or death. Hawk had indicated to the officer preparing the PSI that he was still having significant medical problems as a result of the |sshooting. The PSI also showed that Lof-ton was classified as a third-felony offender and not eligible for a probated sentence. The trial court concluded that because of Lofton’s history with violent actions, he would likely re-offend and would present a danger to the public. The trial court also determined that any lesser sentence than the one Lofton was about to receive would deprecate the seriousness of the offense. Lofton was sentenced the same as before — 20 years at hard labor with credit for time served. This appeal followed.

Discussion

Lofton raises only one assignment of error, arguing that his sentence is excessive. Specifically, he submits that he is not the worst of offenders, and the trial court only focused on his criminal act and his prior criminal history, mentioning nothing of Lofton’s social history, family, health, education, or work experience. Thus, Lofton argues that his sentence was not tailored to him, and the goals of punishment and rehabilitation could be accomplished with a less severe sentence. We disagree.

Notably, where a specific sentence or sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive if that right has not been specifically reserved. La. C. Cr. P. art. 881.2(A)(2). Moreover, in such a case there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. State v. Hicks, 45,001 (La.App.2d Cir.01/27/10), 30 So.3d 1081, writ denied, 2010-0459 (La.09/24/10), 45 So.3d 1071.

The record in this case clearly shows that Lofton pled guilty with a sentence cap. Further, the record does not contain any indication that Lofton reserved the right to appeal his sentence as excessive. Moreover, although Lofton argues that he did not intelligently waive his constitutional right to appellate review, the record does not bear that out. Accordingly, because the only issue is excessiveness, and the sentence imposed cannot be appealed as excessive, Lofton’s sentence is affirmed.

Conclusion

For the foregoing reasons, the conviction and sentence of Rafael Lofton are affirmed.

AFFIRMED.

      . Lofton did not appeal the trial court's denial of his motion to withdraw his guilty plea.


author: SEXTON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee, v. Darrell Lance CULVERHOUSE, Appellant.
    No. 47,508-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Louisiana Appellate Project by Edward J. Marquet, Lafayette, LA, for Appellant.
    Darrell Lance Culverhouse, Pro Se.
    J. Schuyler Marvin, District Attorney, Charles Jacobs, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| defendant, Darrell Lance Culverhouse, pled guilty to one count of attempted aggravated rape. On November 28, 2011, in accordance with the terms of a plea agreement, Defendant was sentenced to serve the agreed-upon sentence of ten years at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals. His appellate counsel filed a motion to withdraw, together with a Benjamin brief in support of the motion. For the following reasons, the motion to withdraw is granted, and Defendant’s conviction and sentence are affirmed.

DISCUSSION

On January 12, 2009, Defendant was charged by bill of indictment with one count of aggravated rape, a violation of La. R.S. 14:42. On February 17, 2009, Defendant pled not guilty to the charge. Defendant’s counsel sought a sanity determination; and, on August 14, 2009, a sanity hearing was submitted on doctors’ reports. The physicians found that Defendant was capable of assisting in his defense, and the trial court so ruled.

On November 28, 2011, the day the trial was to begin, Defendant entered into a plea bargain agreement with the State. Defendant, who was represented by counsel, pled guilty to one count of attempted aggravated rape; and, in exchange, the State agreed to a sentence of ten years at hard labor without benefit of probation, parole or suspension of sentence.

The facts recited during Defendant’s guilty plea colloquy revealed that, on December 5, 2008, Defendant committed the offense of attempted | ¡.aggravated rape upon the minor child, L.J.M., whose date of birth is December 17, 2004. The offense occurred within the confines of Bossier Parish. Specifically, Defendant was visiting the residence of the juvenile’s grandfather when the child went to take a nap. Defendant had oral contact to the child’s genital and anal areas. Defendant confirmed that the facts as recited by the district attorney were correct. At the conclusion of the recitation of the facts, the trial judge advised Defendant of his Boy-kin rights and accepted the guilty plea.

The mother of the victim was present at sentencing and assented to the ten-year sentence in order to prevent the child from having to testify. Defendant was then sentenced to the agreed-upon sentence of ten years at hard labor without benefit of probation, parole or suspension of sentence, and was given credit for time served. Defendant was required to register as a sex offender and he did so.

On January 5, 2012, Defendant filed a pro se motion for appeal. The appeal was granted and the Louisiana Appellate Project was appointed to represent Defendant. Defendant’s appellate counsel filed a Benjamin brief, seeking to withdraw and alleging that he could find no non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and, State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history of the case and the facts of the case set forth by the State, |sas previously noted. The brief also contains “a detailed and renewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. The State filed a letter with this Court agreeing that there are no non-frivolous issues to raise on appeal.

Defense counsel also verified that he mailed copies of the motion to withdraw and his brief to Defendant, in accordance with Anders, Jyles, Mouton and Benjamin, supra. Defendant did not request the record and did not file a brief.

This Court has conducted an error patent review of the appellate record. The bill of information and arraignment were correctly done. There were no errors patent found in the guilty plea. Pursuant to La. C. Cr. P. art. 881.2, Defendant is precluded from seeking review of his sentence because it was imposed in conformity with a plea agreement set forth in the record at the time of the plea. No other errors patent were found.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and the conviction and sentence of Darrell Lance Culver-house are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


text:
    Traci Lee ADAMS, Individually, and on Behalf of the Minor Children, Jordan Alexandria Adams & Kristen McKenzie Adams, Plaintiffs-Appellants v. The CITY OF SHREVEPORT, Defendant-Appellee.
    No. 47,515-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Nelson & Hammons, by John L. Ham-mons, Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche, by Brian D. Landry, Shreveport, LA, for Appellants.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, Shreveport, LA, by Edwin Henry Byrd, III, Nichole M. Cox, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   LOLLEY, J.

|, Traci Lee Adams, individually, and on behalf of the minor children, Jordan Alexandra Adams and Kristen McKenzie Adams, appeals the judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, wherein the trial court granted the City of Shreveport’s motion for summary judgment. For the following reasons, we affirm the trial court’s judgment.

FACTS

On February 21, 2009, Shreveport Fire Department Chief Tommy Adams (“Chief Adams”) fell from the top of a ladder truck while readying the truck for service following the Gemini Mardi Gras parade. Chief Adams sustained severe trauma to his spinal column resulting in a fractured neck.

Nearby emergency medical technicians, employed by the City of Shreveport (the “City”), rushed to Adams’ aid and attempted to stabilize him until he could be transported to the hospital. The EMTs fitted Adams in a cervical collar and placed him on a spine-board while awaiting an ambulance. Paramedics arrived after two to three minutes, recognized that Chief Adams was not receiving oxygen, and unsuccessfully attempted emergency oxygenation. Chief Adams arrived at Willis-Knighton Pierremont approximately seven minutes later where he was fully oxygenated; however, by that point Chief Adams had suffered severe and irreversible brain damage from lack of oxygen. Chief Adams died ten months later of complications resulting from injuries due to the lack of oxygen sustained that day.

lüTraci Lee Adams (“Adams”), Chief Adams’ wife, timely filed suit on behalf of herself and her two minor children, contending that the City’s response to Chief Adams’ injuries fell below a reasonable standard of care that should have been provided. In response, the City filed a peremptory exception of no cause of action arguing that the Louisiana Worker’s Compensation Act provided the exclusive remedy. The trial court granted the exception while also granting Adams 30 days to amend her original petition.

Adams submitted an amended petition contending that the City knew or should have known that Chief Adams’ injuries were substantially certain to occur as a result of the City’s actions. Again, the City filed a peremptory exception of no cause of action; however, the trial court denied the second peremptory exception finding that while the petition did not overcome the prohibition against claims pursuant to the “dual capacity” doctrine, the amended petition alleged facts which if believed might justify application of the intentional act exception to the exclusive remedies provided by the Louisiana Worker’s Compensation Act. The City sought supervisory review from this Court concerning the trial court’s denial of the peremptory exception, which writ was denied.

Subsequently, the case was transferred to a new trial judge. After discovery, the City filed a motion for summary judgment. Adams filed a second amended petition reiterating the claim made in her first amended petition that the City knew or should have known that Chief Adams’ injuries were substantially certain to occur as a result of the City’s actions. The trial ¡¡¡court granted the City’s motion for summary judgment finding that neither the pleadings, depositions, nor briefs supported an exception to the exclusive remedies provided by the Louisiana Worker’s Compensation Act. This appeal by Adams followed.

DISCUSSION

As her first assignment of error, Adams argues that the trial court failed to recognize that the City’s motion for summary judgment was a cleverly disguised peremptory exception of no cause of action which had already been denied by the previous trial judge and by this Court. Therefore, Adams argues, the law of the case doctrine precluded the City from rearguing the issue of no cause of action. Further, Adams contends that the trial court’s failure to use the words “genuine issue of material fact” in its reasoning for granting the motion for summary judgment indicates that the trial court treated the motion for summary judgment as an exception of no cause of action. We disagree.

In the present case there is no indication that the City’s motion for summary judgment is merely a disguised exception of no cause of action as Adams contends. Initially, the trial court properly recognized that the additional allegations made in Adams’ first amended petition may have invoked the intentional act exception. At that point, the trial court denied the City’s exception of no cause of action, considering the allegations made therein as potentially falling within the intentional act exception. Whereas no evidence may be introduced at any time to support an exception of no cause of action, the standard of review for a motion for summary judgment fallows review of the evidence submitted in support of the motion in addition to the pleadings. La. C.C.P. art. 927(A)(5); La. C.C.P. art. 966. The subject pleading Adams questions was filed by the City following discovery. The record shows that the trial court’s review and analysis of the City’s motion for summary judgment covered much more than the pleadings and included consideration of discovery. Clearly the trial court treated the motion for summary judgment as such and not as another exception of no cause of action where the trial court would only consider the face of the petition. Therefore, this assignment of error is without merit and we need not consider whether the law of the case doctrine is applicable.

Summary Judgment

As her second assignment of error, Adams argues that the trial court erroneously granted the City’s motion for summary judgment. Adams contends that the decision by the Shreveport Fire Department not to supply cricothyroidotomy equipment (“quick-trach kits”) to all paramedic units substantiates a genuine issue of material fact supporting her allegations that the intentional act exception is applicable. As further support for application of the exception, Adams claims that radio communication between paramedic units broke down and caused a delay in the response of these units amounting to an intentional act by the City. Finally, Adams argues that personnel who treated Chief Adams failed to properly intubate him even though oxygenation equipment was available resulting in his additional brain injury and, therefore, the intentional act exception should apply. Again, we disagree.

IsThe plaintiff or defendant may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored by the courts and construed to accomplish these ends. La. C.C.P. art. 966. The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that it has evidence which, if believed, could satisfy its evidentiary burden of proof at trial. If there is no such evidence, then there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Young v. Marsh, 46,896 (La.App.2d Cir.01/25/12), 86 So.3d 42.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Young, supra.

An employee injured in the course of his employment is generally not allowed to recover tort damages against his employer. Clinton v. Reigel By-Products, Inc., 42,497 (La.App.2d Cir.09/19/07), 965 So.2d 1006, writ not considered, 2007-2239 (La.02/15/08), 976 So.2d 168. Rather, the employee’s exclusive remedy for workplace injuries is worker’s compensation, unless the employee’s injuries are the result of an intentional act. La. R.S. 23:1032(A) and (B); Clinton, supra. The intentional act exception to worker’s compensation is narrowly construed. Reeves v. Structural Preservation Systems, 98-1795 (La.03/12/99), 731 So.2d 208. Gross negligence does not equate to an intentional act, nor does the failure |f;to provide safety equipment or a violation of safety standards typically suffice to establish liability under the intentional act exception. Id.

Establishing that a workplace injury resulted from an intentional act requires evidence that the employer either (1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knew that that result was substantially certain to follow from his conduct, whatever his desire may have been as to that result. Bazley v. Tortorich, 397 So.2d 475 (La.1981); Reynolds v. Louisiana Plastic, 44,803 (La.App.2d Cir.10/28/09), 26 So.3d 149, writ denied, 2009-2805 (La.03/05/10), 28 So.3d 1013. Mere knowledge and appreciation of a risk does not constitute intent. Nichols v. Horseshoe Casino, 43,947 (La.App.2d Cir.01/14/09), 999 So.2d 1255.

Here the trial court properly granted the City’s motion for summary judgment as Adams failed to establish that her husband’s injuries resulted from an intentional act by the City. First, there is no argument that Chief Adams’ injuries were consciously desired by the City. Second, the City’s decision not to supply all emergency units with quick-trach kits does not rise to the level of intentional action necessary to trigger the intentional act exception to worker’s compensation exclusivity. It may have been foreseeable that one of the unequipped medical units would need a quick-trach kit; however, that a person at the parade may at some point suffer an injury requiring the utilization of a quick-trach does not rise to the level of substantial certainty needed to establish an intentional act. The same may be said for the City’s failure to maintain a functional communications |7network and its failure to utilize all the equipment available in order to treat Chief Adams. While these failures may provide grounds for a claim in negligence, absent worker’s compensation exclusivity, they do not match the narrow criteria necessary for application of the intentional act exception. Rather, the record reflects an effort by the City to respond to a dynamic emergency situation requiring rapid decision making which tragically failed to mitigate the injuries sustained by Chief Adams. The trial court correctly concluded that Adams had not produced any evidence which, if believed, would support a finding that the City knew its actions were substantially certain to result in the injuries suffered by Chief Adams, and summary judgment in favor of the City on this issue was proper.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of the City of Shreveport. All costs of this appeal are to be paid by Traci Lee Adams.

AFFIRMED.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Thomas HEDGESPETH, Appellant.
    No. 47,523-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Louisiana Appellate Project by Douglas L. Harville, for Appellant.
    Thomas Hedgespeth, Pro se.
    Charles R. Scott, II, District Attorney, Dale G. Cox, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   STEWART, J.

|, In the wake of Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the defendant, Thomas Hedges-peth, began pro se proceedings to obtain a reduction of his life sentence without benefit of probation, parole, or suspension of sentence for an aggravated rape committed when he was 17. See State v. Hedgspeth, 42,921 (La.App.2d Cir.1/9/08), 974 So.2d 150, writ denied, 2008-0467 (La.10/3/08), 992 So.2d 1008. The trial court resentenced Hedgespeth to life imprisonment but removed the restrictions as to the benefits of probation, parole, or suspension of sentence. For reasons explained in this opinion, we affirm the sentence with amendment to correct that part which is illegally lenient, namely, the removal of the restrictions as to the benefits of probation and suspension of sentence.

FACTS

On February 17, 2011, the defendant filed a pro se “Motion to Correct An Invalid And Illegal Sentence.” Citing Graham, supra, he argued that his life sentence without benefit of parole is invalid and must be vacated. He also argued that the trial court must impose a new sentence under the penalty provisions for the next lesser and included offense, which he asserted to be forcible rape carrying a sentence of not less than five nor more than forty years’ imprisonment at hard labor. See La. R.S. 14:42.1(B).

The trial court appointed counsel for the defendant and ordered briefing. After hearing the matter on December 7, 2011, the trial court sentenced Hedgespeth to “life imprisonment removing the without the benefit of probation, parole, and suspension of sentence, and ordering that |2the board of parole determine his eligibility for any parole.” Differing from the transcript, the minutes state that the trial court ordered the life sentence served without benefit of probation or suspension of sentence and with credit for time served. Hedgespeth filed a motion to reconsider the sentence, which was denied.

Alleging that he could find no nonfrivo-lous issues to raise on appeal, appellate counsel filed an Anders brief seeking to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

In a pro se brief, Hedgespeth argues that the trial court erred in sentencing him to life imprisonment with parole to be determined by the Board of Parole and that the matter should be remanded for the trial court to sentence him under the next lesser and included offense in accordance with State v. Craig, 340 So.2d 191 (La.1976). He also argues that a life sentence with parole eligibility to be determined by the Board of. Parole is illegal and conflicts with La. R.S. 15:574.4(B), which prohibits consideration for parole until a life sentence is commuted to a fixed term of years.

I «DISCUSSION

The United States Supreme Court in Graham, supra, held that the Eighth Amendment precludes life sentences without the possibility of parole for individuals who committed non-homicide offenses as juveniles. The Supreme Court did not require the release of such individuals. Rather, the Supreme Court instructed that the State provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. -, 130 S.Ct. at 2030.

Following the Graham opinion, the Louisiana Supreme Court in State v. Shaffer, 2011-1756 (La.11/23/11), 77 So.2d 939, a opinion, addressed the claims of three re-lators, all juvenile offenders who had been convicted of aggravated rape and given life sentences and who asserted that their sentences were in violation of Graham, supra. One defendant, Dyer, had been sentenced to life imprisonment with an express restriction against parole eligibility. The two others had received life sentences without express restrictions on parole eligibility. Relators argued that the appropriate remedy in light of the Graham decision would be to resentence them in accordance with the penalty provisions for the next lesser and included responsive verdict (attempted aggravated rape). The supreme court rejected this argument, thereby implicitly rejecting the remedy afforded in Craig, supra, relied on by Hed-gespeth. See also State v. Mason, 2011-1190 (La.App.4th Cir.4/11/12), 89 So.3d 405, wherein the court concluded that Shaffer, supra, precluded it from applying the Craig remedy to correct the illegal life sentence imposed for aggravated rape. To the | ¿extent that Hedgespeth seeks remand for resentencing under Craig, supra, we find no merit to his arguments.

The Shaffer opinion recognized that Graham, supra, required neither the immediate release of the relators nor a remedy that would guarantee their immediate release based on credit for time served. Rather, Graham, supra, required only that the state provide a “meaningful opportunity” for relators and other similarly situated persons to obtain release as part of the rehabilitative process. Shaffer, 77 So.3d at 942. Under Graham, supra, the court held that the Eighth Amendment prohibited the state from enforcing against rela-tors and other similarly situated persons the commutation provisos in La. R.S. 15:574.4(A)(2) and La. R.S. 15:574.4(B), both of which require commutation of a life sentence to a fixed term before parole consideration.

The remedy fashioned to satisfy Graham, supra, was to amend Dyer’s sentence to delete the restriction on parole eligibility. As stated, the other two relators had life sentences without express restrictions as to parole eligibility. The supreme court directed the Department of Corrections to revise Dyer’s prison master to reflect that his sentence would no longer be without the benefit of parole and to revise the prison masters of all three relators “according to La. R.S. 15:574.4(A)(2) to reflect eligibility for consideration by the Board of Parole.” Shaffer, 77 So.3d at 943. By application of La. R.S. 15:574.4(A)(2), the Shaffer relators would become Ineligible for parole consideration upon serving at least 20 years of their terms of imprisonment and upon reaching the age of 45.

Following the Shaffer opinion, this court likewise held that the appropriate remedy for such an illegal sentence is to modify the life sentence to make the defendant eligible for parole consideration under the criteria set forth in La. R.S. 15:574.4(A)(2). See State v. Macon, 46,696 (La.App.2d Cir.1/25/12), 86 So.3d 662, writ denied, 2012-0395 (La.5/25/12), 90 So.3d 411.

In a footnote, the supreme court described its Shaffer decision as an “interim measure” pending legislative response to Graham. Shaffer, supra, fn. 6. The Legislature has responded by providing a means by which persons who were under the age of 18 at the time of the offense and are serving life sentences for convictions other than for first or second degree murder shall become eligible for parole consideration.

Acts 2012, No. 466, Section 1, effective August 1, 2012, amended La. R.S. 15:574.4(B) to read, in pertinent part, “Except as provided in Subsection D, no prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years.” The newly added Subsection D provides:

D. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment who was under the age of eighteen years at the time of the commission of the offense, except for a person serving a life sentence for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1), shall be eligible for parole consideration pursuant to the provisions of this Subsection if all of the following conditions have been met:
(a) The offender has served thirty years of the sentence imposed.
L(b) The offender has not committed any disciplinary offenses in the twelve consecutive months prior to the parole eligibility date.
(c) The offender has completed the mandatory minimum of one hundred hours of prerelease programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
(i) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.
(h) If the offender was convicted of aggravated rape, he shall be designated a sex offender and upon release shall comply with all sex offender registration and notification provisions as required by law.
(2) For each offender eligible for parole consideration pursuant to the provisions of this Subsection, the board shall meet in a three-member panel and each member of the panel shall be provided with and shall consider a written evaluation of the offender by a person who has expertise in adolescent brain development and behavior and any other relevant evidence pertaining to the offender.
(3) The panel shall render specific findings of fact in support of its decision.

The amendment of La. R.S. 15:574.4(B) and the enactment of La. R.S. 15:574.4(D) essentially overrule Shaffer, supra, to the extent that it |7directed revision of relators’ prison masters according to the criteria of La. R.S. 15:574.4(A)(2) concerning their eligibility for parole consideration. However, enactment of Subsection D to govern eligibility for parole consideration for those individuals who fall under Graham, supra, does not overrule the Shaffer remedy of amending the illegal sentence to remove the restriction on parole eligibility. Amendment to remove the restriction as to parole would now automatically trigger the provisions of La. R.S. 15:574.4(D), which we presume to be constitutional, regarding eligibility for parole consideration.

In line with Shaffer, supra, Macon, supra, and the enactment of La. R.S. 15:574.4(D), we find no merit to the defendant’s argument that his new sentence conflicts with the pre-amendment provisions of La. R.S. 15:574.4(B) requiring commutation of a life sentence to a fixed term before consideration for parole eligibility. The trial court’s removal of the restriction as to the benefit of parole is in line with the remedy crafted in Shaffer, supra, and will make the defendant eligible for parole consideration under the new statutory scheme set forth- at La. R.S. 15:574(D).

Finally, we noted above a conflict between the transcript and the minutes regarding the new sentence imposed by the trial court. According to the transcript, the trial court imposed a sentence of “life imprisonment removing the without the benefit of probation, parole, or suspension of sentence.” However, the minutes state that sentence was imposed “without benefit of probation or suspension of sentence.” Where there is a conflict | ^between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). The penalty provision for aggravated rape provides that the offender “shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” La. R.S. 14:42(D)(1). This is a mandatory sentence. While the Shaffer decision permits resentencing without the restriction as to parole so as to comply with Graham, supra, it does not support amendment of a mandatory life sentence to remove the restrictions as to probation or the suspension of the sentence. We find that the trial court imposed an illegally lenient sentence, which is subject to correction on appeal. Under La. C. Cr. P. art. 882, an illegal sentence may be corrected at any time by the court that imposed the sentence or by the appellate court on review.

Therefore, we amend the defendant’s sentence to life imprisonment at hard labor without benefit of probation or suspension of sentence. We also note that the trial court did not order that the defendant’s prison master be revised to reflect that his sentence is no longer without the benefit of parole such that he may become eligible for parole under the criteria provided by law. Therefore, we order the Department of Corrections to make this revision.

CONCLUSION

For the reasons explained, the defendant’s sentence is hereby amended to life imprisonment at hard labor without benefit of probation and suspension of sentence. The Department of Corrections is hereby ordered to revise the defendant’s prison master to reflect that his sentence is no longer |9without benefit of parole. Appellate counsel’s motion to withdraw is granted.

SENTENCE AFFIRMED AS AMENDED.

MOTION TO WITHDRAW GRANTED.

      . In Craig, supra, the supreme court invalidated the mandatory death penalty for aggravated rape convictions in the wake of Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The remedy for the unconstitutional sentences was to remand the case for resentencing of the defendant to the most serious penalty for a lesser and included offense.

      . In holding that the state may not enforce the commutation provisos in La. R.S. 15:574.4(A)(2) and R.S. 15:574.4(B) against relators and other similarly situated persons, the supreme court explained that the provisions of the former, La. R.S. 15:574.4(A)(2), offered objective criteria that might allow the state to comply with Graham. Shaffer, supra.

      . Statutes are presumed to be constitutional. State v. Granger, 2007-2285 (La.5/21/08), 982 So.2d 779; State v. Fleury, 01-0871 (La.10/16/01), 799 So.2d 468.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Tacarus Laclarence DREW, Appellant.
    No. 47,531-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.
    Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles A. Smith, William M. Altimus, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   MOORE, J.

liThe defendant, Tacaras Laelarence Drew, was charged with aggravated rape of a 16-year-old female. He entered a plea of not guilty. Prior to trial, the defendant withdrew his not guilty plea and pled guilty to one count of forcible rape with an agreed-upon sentencing cap of 30 years. He was subsequently sentenced to serve 28 years at hard labor. The defendant now appeals. His appellate counsel filed a motion to withdraw, together with an Anders brief. The motion to withdraw is granted, and the defendant’s conviction is affirmed; however, we vacate the illegally lenient sentence and remand for resentencing.

FACTS

The matters of record indicate that on November 1, 2009, the 16-year-old female victim was walking home from work when the defendant approached her from behind and asked her for a cigarette. The victim ignored the defendant and continued walking. The defendant persisted in following her and repeatedly asking for a cigarette. She crossed to the other side of the street to get away, but he continued to follow her, now asking if she had dropped her keys. Eventually the victim began running to escape her predator. The defendant chased her down, pushed her to the ground and beat her in the back of her head with his fists. He then dragged her behind a row of cars. Continuing to strike the victim, he threatened to kill her if she resisted. He forcibly removed her pants and raped her. After the rape, the defendant took her purse and fled.

li>The victim saw the defendant the next day walking through a parking lot at an apartment complex. The defendant fled, and the victim called the police. After a short investigation, the police were able to determine the identity of the defendant. After his arrest, he admitted that he asked the victim for a cigarette. After she kept walking away from him, he threw her to the ground and had sex with her. He admitted to taking her purse.

The defendant was charged by bill of information with one count of aggravated rape. He entered a plea of not guilty.

Prior to trial, on November 14, 2011, the defendant entered into a plea agreement with the state in which he agreed to plead guilty to the reduced charge of forcible rape. In exchange for his guilty plea to the reduced charge, the state agreed to a sentencing cap of 30 years. The defendant admitted to the facts recited by the state during the defendant’s plea hearing, admitting that he vaginally raped the minor victim who was prevented from resisting the act by force, or threats thereof, physical violence and circumstances causing her to reasonably believe that resistance would not have prevented the rape. After he was advised of his Boylcin rights, the trial court accepted his guilty plea. After a presentence investigation, the defendant came for sentencing on January 6, 2012 and was sentenced to serve 28 years at hard labor to be served concurrently with any other sentences he was obligated to serve.

This appeal followed, and the defendant’s appellate counsel filed an Anders brief, seeking to withdraw and which alleged that he could find noj^nonfrivolous issues to raise on appeal. See Anders v. California, supra at note 1; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). The brief outlines the procedural history of the case and the facts of the case set forth by the state, as previously noted. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. The state filed a letter with this court agreeing that there are no nonfrivolous issues to raise on appeal.

Defense counsel also verified that he mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders, Jyles, Mouton, and Benjamin, supra. The defendant never requested the record and did not file a brief.

DISCUSSION

This court has conducted an error patent review of the appellate record. The bill of information and arraignment were correctly done. There were no errors patent found in regard to the defendant’s guilty plea.

Defendant is precluded from seeking review of his sentence because it was imposed under a sentencing cap in conformity with a plea agreement set forth in the record at the time of the plea. See La. C. Cr. P. art. 881.2; State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171. However, our error patent review indicates an illegally lenient sentence which we are required to vacate. The trial judge failed to restrict at least two years of ¡^defendant's sentence for forcible rape from benefit of parole, probation or suspension of sentence, as required by La. R.S. 14:42.1(B). Because the language of the sentencing provision gives the trial judge discretion in determining the exact length of time that benefits were to be withheld, the sentence must be vacated and the case remanded for resentencing in compliance with La. R.S. 14:42.1. State v. Carter, 43,304 (La.App. 2 Cir. 6/18/08), 987 So.2d 364, writ denied, 08-2752 (La.9/25/09), 18 So.3d 86.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted and the defendant’s conviction is affirmed. We vacate the sentence and remand for resentencing in accordance with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).