author: EZELL, Judge.

text:
    STATE of Louisiana v. Archie Louis CARTER, Jr.
    No. KA 08-1469.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      James C. Downs, District Attorney. — • Ninth Judicial District Court, Loren Marc Lampert, Alexandria, LA, for Plaintifi/Ap-pellee State of Louisiana.
    William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant Archie Louis Carter, Jr.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| ,In April 2007, a jury found Defendant, Archie Louis Carter, Jr., guilty of possession of codeine, possession with intent to distribute hydrocodone, obstruction of justice, possession of marijuana in an amount greater than sixty pounds but less than two thousand pounds, and conspiracy to distribute marijuana. The trial court sentenced Defendant to five years on each of the first three convictions, thirty years on the fourth and ten years on the fifth. All sentences were to run concurrently. On appeal, this court reversed Defendant’s conviction for possession of codeine and for possession of marijuana in an amount greater than sixty pounds but less than two thousand pounds and vacated his sentences for those two convictions. The other convictions and sentences were affirmed. State v. Carter, 07-1237 (La.App. 3 Cir. 4/9/08), 981 So.2d 734, writ denied, 08-1083 (La.1/9/09), 998 So.2d 712.

Two days after this court affirmed the three remaining convictions and sentences, the State filed its multiple offender bill under docket number 283812. At a hearing on July 14, 2008, the trial court adjudicated Defendant a second offender, vacated his prior sentences and resentenced Defendant on each conviction as follows:

1. For possession with intent to distribute CDS III, twenty years at hard labor;
2. For obstruction of justice, ten years at hard labor, and
3. For conspiracy to distribute CDS I, twenty-five years at hard labor.

_JjThe sentences are to run concurrently, with credit for time served. Defendant filed a motion to reconsider which addressed only his twenty-year sentence for possession with intent to distribute CDS III.

Defendant now appeals, asserting his adjudication was improper and his sentences are excessive. For the reasons discussed below, Defendant’s adjudication as a multiple offender and his sentences are affirmed.

FACTS

The Defendant was adjudicated a second felony offender and sentenced to twenty years at hard labor for possession with intent to distribute hydrocodone, ten years at hard labor for obstruction of justice, and twenty-five years at hard labor for conspiracy to distribute marijuana.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues his adjudication as a second offender is improper because the habitual offender bill of information was (1) untimely, (2) Defendant was not adequately advised of his right to trial by jury at the guilty plea of the predicate offenses, (3) the State failed to provide proper notice of the habitual offender hearing and comply with discovery, and (4) the State failed to prove the cleansing period had not expired.

Untimeliness of the Habitual Offender Bill

Because eleven months elapsed between Defendant’s May 11, 2007 sentencing and the filing of the multiple offender bill of information, Defendant argues the bill |swas untimely. Defendant cites four cases in support of his argument; in each of those cases, the Defendant filed a motion to quash the habitual offender bill. Defendant herein did not file a motion to quash or otherwise make the argument of untimeliness in the trial court. This legal argument cannot be raised for the first time on appeal where Defendant failed to file a motion to quash the multiple offender bill in the trial court prior to his multiple offender hearing. State v. Young, 08-387 (La.App. 5 Cir. 9/16/08), 996 So.2d 302. Therefore, this assignment of error is not considered, as it is not properly before the court. Id.; State v. Braziel, 42,668 (La.App. 2 Cir. 10/24/07), 968 So.2d 853.

Improper Notice of Hearing and Compliance with Discovery

Defendant relies on discovery requests filed during the course of the original pre-trial proceedings, with which the State complied. He argues the State had a continuing duty to disclose pursuant to those requests. Defendant alleges he was prevented from preparing and presenting an adequate defense in the multiple offender proceeding because of the State’s failure to continue to disclose.

The State had no obligation to provide Defendant with its proof of the multiple offender bill prior to the hearing. State v. Williams, 02-2189 (La.App. 4 Cir. 6/4/03), 849 So.2d 799. As in Williams, Defendant knew from the content of the multiple offender bill that the March 2002 guilty pleas and the April 2007 convictions would be the bases for enhancing his sentences. He waived formal arraignment on the multiple offender charge on May 23, 2008, and he had ample time to propound additional discovery in the multiple offender proceeding. The record indicates no discovery had been filed as of May 23, 2008, and none was filed thereafter. The State did not violate any duty to disclose information to Defendant regarding his multiple offender bill, and thus, this argument has no merit.

\4Failure to Advise of Rights on Predicate Offense

Defendant complains the trial court erroneously failed to advise him of his right to trial by jury when he pled guilty on March 11, 2002, and thus, his guilty pleas were not voluntarily made. United States Constitution Amendments V and VI require a defendant to be advised of this right. Minutes of court on all three charges, however, state the “court explained to the accused his constitutional rights, including, among others, the right to trial by judge or jury....” Further, the transcript of the pleas indicates the trial judge advised Defendant as follows:

BY THE COURT:
You have a right to plead not guilty and we can proceed to a trial by judge or by jury at your choice. Do you understand that?
BY MR. CARTER:
Yes, sir.

Nevertheless, at the multiple offender hearing, Defendant first said his attorney never explained he had the right to a jury trial, or the difference between trial by jury and trial by judge. Later, however, he said he could not be positive that the judge went over his rights at the plea hearing. When questioned by the trial judge, Defendant could not recall being advised of any of his rights at the plea hearing, but testified his “rememory (sic) clouded from 2002.” Defendant argues he was not advised of his right to a jury trial because the Felony Plea of Guilty and Waiver of Rights Check List mentions only that he was entitled to a trial.

The record must show a defendant’s guilty plea was entered into knowingly and voluntarily. State v. Salinas, 97-716 (La.App. 3 Cir. 10/29/97), 703 So.2d 671, rev’d on other grounds, 97-2930 (La.9/25/98), 719 So.2d 1035. Thus, the record of a valid guilty plea must show the defendant knowingly and voluntarily waived his right to trial by jury. Id. However, the State adequately proves that a defendant is 15correctly advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), by use of either court minutes or the contemporaneous transcript of the guilty plea. State v. Bland, 419 So.2d 1227 (La.1982).

Here, both the contemporaneous record of the pleas and the court minutes specifically address Defendant’s right to plead not guilty and “proceed to a trial by judge or by jury at your choice.” Defendant indicated he understood, and that agreement is memorialized in the court minutes. Defendant’s claim that the transcript and minute entries do not indicate he was apprised of his right to a jury trial is simply erroneous.

Cleansing Period

Defendant argues for the first time on appeal that the State did not prove ten years had not elapsed between his release from State custody and the current conviction. Defendant filed no motion to quash the multiple offender bill for this (or any other) reason, and he made no objection at the hearing that the State had failed to prove the cleansing period had not elapsed. Thus, this issue has not been preserved for appeal, and it is not now properly before this court. State v. Lewis, 00-53 (La.App. 4 Cir. 12/13/00), 776 So.2d 613, writ denied, 01-381 (La.10/5/01), 798 So.2d 966.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant claims his enhanced sentences are excessive and were lengthened unnecessarily in retribution for his “successful exercise of his appellate rights.” We find the enhanced sentences are not excessive for this Defendant under these circumstances. This court has set out a standard to be used in reviewing excessive sentence claims:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive | ^sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (alteration in original).

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The trial judge here did not delineate any factors at the multiple offender hearing to support the length of Defendant’s enhanced sentences. He did, however, advise Defendant that the factual basis of his ruling was the reported decision of this 17court in the appeal of the April 20, 2007 guilty verdict. See State v. Carter, 981 So.2d 734.

Although Defendant was only twenty-six years old at the time of his multiple offender sentencing, he already had a long criminal history. Defendant was sentenced in 2002 on two counts of possession of CDS Schedule II, two counts of possession of CDS Schedule V, illegal carrying of a weapon with drugs, and possession with intent to distribute CDS Schedule I. Id. Additionally, in 1998, Defendant was convicted of simple escape. Id. Defendant had been booked into jail twenty-four times by the time of his April 2007 trial. Id.

As a result of the 2007 conviction, the trial court considered as aggravating factors that Defendant used his position or status to facilitate his offenses and that he was a leader in concert with others over whom Defendant held a supervisory, management or organizer position. Id. Defendant received the maximum sentence as a second offender on the charge of distribution of CDS Schedule III, hydrocodone. The possible sentence for conspiracy to distribute CDS Schedule I, marijuana was seven and a half to thirty years. Defendant received a sentence of twenty-five years, toward the upper end of the range.

The previous opinion of the court at Carter, 981 So.2d 734, contains an error regarding Defendant’s sentence for obstruction of justice. That opinion refers to the maximum sentence as five years, and it affirms Defendant’s maximum sentence. In fact, the obstruction of justice charge was related to distribution of hydrocodone, a lacrime that mandates hard labor and carries less than a life sentence. La.R.S. 40:968(B). Thus, the sentence applicable to Defendant’s obstruction of justice charge is found at La.R.S. 14:130.1(B)(2), which carries a maximum sentence of twenty years at hard labor, not a maximum of five years.

Accordingly, the range for Defendant’s enhanced obstruction of justice sentence was ten to forty years. La.R.S. 14:130.1(B)(2); La.R.S. 15:529.1(A)(l)(a). He was sentenced as a multiple offender to ten years, in actuality the minimum enhanced sentence rather than the maximum.

Other cases dealing with similar offenses show Defendant’s sentences, while toward the high end of his sentencing range, are not excessive. For example, the defendant was sentenced to the maximum thirty years for attempted possession of marijuana with intent to distribute in State v. Taylor, 39,651 (La.App. 2 Cir. 4/6/05), 900 So.2d 212. The Taylor defendant was on parole for a crime of violence when the offense occurred and had been out of jail only a few weeks. The trial court had found an undue risk that the defendant would commit another crime during a period of suspension or probation, a lesser sentence would deprecate the seriousness of the offense, and the defendant was in need of correctional treatment. Id. The second circuit affirmed the trial court’s characterization of the defendant as “the worst type of offender.” Id. at 220.

The defendant in State v. Murray, 42,655, 42,656, 42,658 (La.App. 2 Cir. 10/24/07), 968 So.2d 916, writ denied, 08-468 (La.11/14/08), 996 So.2d 1083, was convicted of computer-aided solicitation of a juvenile, attempted carnal knowledge of a juvenile, and possession of hydroeodone with the intent to distribute. He was sentenced to ten years for the possession charge as a first offender, although he did have several prior drug convictions. The second circuit noted the trial court’s broad Ifldiscretion in imposing a sentence within statutory limits. Here, Defendant was a second felony offender with numerous pri- or convictions.

With regard to the obstruction of justice conviction, Defendant received the minimum second offender sentence. Downward departures from minimum statutory sentences should only occur in rare cases where a defendant shows his particular case involves an unconstitutionally excessive sentence. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Taylor, 06-839 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, writ denied, 06-859 (La.6/15/07), 958 So.2d 1179. Defendant here has not made any such showing.

The record here demonstrates that, despite his youth, Defendant is a career criminal involved in the trafficking of dangerous drugs. He was not yet twenty years old at the time of his plea bargain in the predicate offenses. Defendant has now been convicted, either by plea or by jury, of ten felonies. He was incarcerated in 2002 as a result of the guilty plea to six felonies but committed three similar felonies related to drug trafficking after his release. Although the record does not indicate the date of Defendant’s release from prison on the predicate offenses, he began serving a seven-year sentence in 2002. Defendant testified at the sentencing hearing that he served three-and-a-half years of that sentence. He was arraigned for the crimes from the April 2007 conviction on September 22, 2006. Apparently, Defendant resumed his criminal habits immediately upon release from incarceration or shortly thereafter. His prior incarceration did not dissuade his behavior. A prior criminal history of similar offenses is a factor the court may consider when imposing a sentence. La.Code Crim.P. art. 894.1(A)(12).

110While Defendant contends his sentences are unconstitutionally excessive, he points to no facts in the record to support that argument. He correctly notes that the circumstances of the case and the defendant’s background, factors noted in Smith, 766 So.2d 501, determine whether a sentence is too severe. He cites all the appropriate cases and principles of law, but he gives this court no factual basis on which to support a downward departure from his sentences or to show an abuse of discretion. The cases cited above suggest that, while Defendant’s sentences for possession of hydroeodone and conspiracy to distribute marijuana may be at the high end of the range, they are not excessive. Defendant’s sentence for obstruction is actually the minimum allowed by statute. La.R.S. 15:529.1(A)(l)(a); La.R.S. 14:130.1(B)(2).

Accordingly, the trial court did not abuse its discretion in sentencing Defendant to twenty years, the maximum time allowed for distribution of hydroeodone, ten years, the minimum time allowed for obstruction of justice, and twenty-five years for conspiracy to distribute marijuana.

CONCLUSION

Defendant’s adjudication as a second felony offender and his sentences are affirmed.

AFFIRMED.

      . Although the trial court referred to this crime by its correct title in adjudicating Defendant a second offender, it inadvertently referred to the crime as possession with intent to distribute marijuana when it sentenced him. However, the court minutes reflect the correct title of the crime.

      . Although the multiple offender bill is dated May 10, 2008, the filing date stamped on the document is April 11, 2008.

      . The trial court stated, "I’m going to advise you that the factual basis for the guilty plea will be the opinion of the Third Circuit, which is not in the record, but it’s a reported decision by the Third Circuit.” In context, it is clear the court intended the opinion to serve as the factual basis for the enhanced sentences, as no "guilty plea” was involved in the proceedings.

      . In its brief, the State cites the transcript of the April 2007 trial. However, at the multiple offender hearing, the trial judge referenced only the reported decision of this court, not the record of that matter. Accordingly, this opinion considers only information reported in the published opinion. Carter, 981 So.2d 734.

      . Defendant’s date of birth is August 13, 1982.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Shawn BERNARD v. The HARTFORD INSURANCE COMPANY, et al.
    No. CA 09-71.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Harry Karl Burdette, The Glenn Ar-mentor Law Corp., Lafayette, LA, for Plaintiff Appellant, Shawn Bernard.
    Jason R. Garrot, Briney & Foret, Lafayette, LA, for Defendants/Appellees, Humberto E. Salcedo, Omni Insurance/Indemnity Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

11 This is an automobile accident case where the plaintiff prevailed at trial, but was dissatisfied by the judgment rendered. The plaintiff claims that the trial court erred by disregarding part of the uncon-troverted medical testimony of his treating physician, by using manifestly erroneous reasoning, and by awarding damages that were abusively low.

After reviewing the record, we find no merit to any of the plaintiffs assignments of error. As such, we affirm the trial court’s judgment and assess all costs of these proceedings to the plaintiff.

FACTS AND PROCEDURAL HISTORY:

On March 23, 2006, Shawn Bernard (Bernard) was driving west on West Pin-hook Road in Lafayette, Louisiana when defendant, Humberto Salcedo, driving a different vehicle, attempted to pull out from a private drive, entered the roadway prematurely, and caused the vehicles to collide. Officer Jared Brown, with the Lafayette Police Department, testified that the extent of the damage to the plaintiffs vehicle was minor. Further, Officer Brown testified that there were no reports of injury at the scene.

Bernard began to have pain in his neck and sought treatment for his injuries on May 2, 2006, with Dr. John Humphries. Bernard was diagnosed with neck pain and a cervical strain by Dr. Humphries, but was given no prescription for pain medication nor was physical therapy ordered. On August 28, 2006, Dr. Humphries discharged Bernard from his care.

In the meantime, Bernard underwent two preemployment physicals where he denied having any neck pain and denied ever having been injured in any accidents within the last five years. Bernard allegedly began to have recurrent pain in his neck 12shortly after the August 28, 2006, discharge, yet did not seek further medical treatment until December 20, 2006, again seeing Dr. Humphries up until he was again discharged on April 25, 2007.

At trial, Dr. Humphries’ video deposition was admitted. Dr. Humphries was the only medical expert to testify in this case. In that deposition, Dr. Humphries stated that Bernard had sustained a soft tissue neck sprain/strain, that an MRI performed after August 28, 2006, revealed no abnormalities related to this accident, and that he had not seen any objective evidence of Bernard’s injury other than a minimal decreased range of movement in his neck. Dr. Humphries also stated that the gaps in treatment are not uncommon with this type of injury.

Dr. Humphries was then made aware that Bernard, only a few days after reporting neck pain to him, denied having any neck pain in one of the preemployment physicals. After learning this fact, Dr. Humphries answered that he would “question the [veracity] of [Bernard’s] subjective complaints to [him].”

After considering all of the testimony, the trial court awarded Bernard $4,500.00 in general damages for the pain and suffering he endured from May 23, 2006, to August 28, 2006. Bernard was also awarded $505.00 in special damages, representing the medical bills incurred in that same time frame. Bernard appealed this judgment, alleging the following three assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court committed manifest error and was clearly wrong in ignoring the expert medical opinion of Dr. Humphries, who causally related his medical treatment of Shawn Bernard to the accident of March 23, 2006; the trial court’s error was manifest because there was no other equally rational view of the evidence presented for the trier of fact to consider.
2. The trial court’s judgment had no reasonable basis because it ignored expert medical opinion and manifestly erred in its reasoning.
|a3. The trial court erred by limiting its awards to Shawn Bernard by granting no special and general damages past August 28, 2006. The trial court did award an amount for general damages suffered from March 23, 2006, to August 28, 2006, but the trial court erred, because the amount was abusively low.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Bernard claims that the trial court committed manifest error when it ignored the expert medical opinion of Dr. Humphries, who causally related his medical treatment to the accident of March 23, 2006. He argues that there was no other equally rational view of the evidence presented for the trier of fact to consider.

“Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d 973, 979 (La.1991) (citing Mart v. Hill, 505 So.2d 1120 (La.1987)).

It is well settled that a court of appeal may not set aside a finding of fact by a trial court or a jury in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Lirette v. State Farm Ins. Co., 563 So.2d 850, 852 (La.1990); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., [][563 So.2d] at 853; Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

Spoilsman Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201, p. 6 (La.App. 3 Cir. 10/19/1999), 748 So.2d 417, 421.

In the case before us, Bernard must show that the record, when viewed as a whole, provides no reasonable basis for the trial court to disregard part of Dr. Hum-phries’ expert medical testimony. We find that Bernard has failed to do so.

Bernard relies heavily on the fact that the testimony of Dr. Humphries was not [,controverted. As such, Bernard asserts that because there are not two rational views as to what medical treatment was related to the accident, the trial court erred when it found that not all of Dr. Humphries’ treatment was related to the accident.

Bernard is correct that Dr. Hum-phries’ testimony is not controverted. However, there is evidence in the record that Dr. Humphries’ opinion relating all the medical treatment to the accident was not based upon all the facts. “Ultimately, the weight to be given expert testimony is dependent upon the facts on which it is based, as well as the professional qualifications and experience of the expert.” Rogers v. Roch, 95-242, p. 16 (La.App. 5 Cir. 10/18/95), 663 So.2d 811, 817.

The following excerpt is from Dr. Hum-phries’ deposition testimony admitted at trial:

Q Doctor, if the patient reports [subjective] symptoms and has a range of movement that varies between visits, do you have to simply trust what the patient is telling you or is there any other way to verify what they’re telling you?
A I’m relying heavily on what the patient is telling me.
Q Assuming [Bernard] went to — seven days after he first saw you, he took an employment physical at Stafford Health Care Clinic where he denies any neck injury whatsoever. Would that call you to question your opinions as to his [veracity] of what he told you?
A Let me ask you, again. What visit are we speaking of?
Q Well, I’m talking about an employment physical that he took through an outside agency, Stafford Health Care Clinic, where he signed and dated and noted that he had no cervical pain complaints.
A What is the date of that?
Q Its May 9, 2006. It’s seven days after you first saw him.
A That would not be what he told me on May 2nd.
|fiQ If he is on two occasions, two employment physicals, where he specifically denies any cervical pain complaints, would that call into question the [veracity] of his subjective complaints to you?
A It probably would, yes.

We find that this exchange provides a reasonable basis for the trial court to disregard Dr. Humphries’ testimony as to the relationship between medical treatment he provided to Bernard and the accident. Dr. Humphries treated Bernard starting on May 2, 2006. The employment physical where Bernard denied any neck pain was seven days later. As such, it was within reason for the trial court to disregard any testimony Dr. Humphries made regarding medical treatment he performed on Bernard after that date.

Next, Bernard argues that a gap in medical treatment is of no consequence. This statement is misguided. While a gap in treatment does not necessitate a finding that the medical treatment is not related to an accident, a trial court may use a gap in treatment as a factor in analysis when making its decision as to whether medical treatment is related to an accident. See Griffin v. Kurica, 03-190 (La.App. 5 Cir. 6/19/03), 850 So.2d 807.

Finally, Bernard argues that a person’s injuries are presumed to have resulted from an accident if, prior to the accident, the person was in good health and, after the accident, the symptoms appear. This presumption is based upon our Supreme Court case of Housley, 579 So.2d 973. This case is distinguishable from Housley.

In Housley, there were medical records in the record indicating that Mrs. Housley was in good medical condition prior to her fall, and there were medical records objectively indicating that, just after her fall, her water bag was diagnosed as having ruptured prematurely. Here, we have no medical records or any indication that [ (¡Bernard was in good health prior to the accident other than his testimony, which the trial court found lacked credibility. Further, Housley is based upon a objective finding that Mrs. Housley’s water bag was prematurely ruptured, whereas here, aside from a slightly limited range of movement in his neck, which was described as “almost full,” Bernard had no other objective findings of an injury.

Accordingly, we find that there is ample evidence in the record for the trial court to disregard a portion, or even all, of Dr. Humphries’ testimony. Further, we find no error in the trial court’s decision not to apply the Housley presumption. As such, we find this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Bernard contends that the trial court’s judgment had no reasonable basis because it ignored expert medical opinion and manifestly erred in its reasoning.

We have already determined in assignment of error number one that the trial court had a reasonable basis for disregarding Dr. Humphries’ testimony. Thus, we will only address the part of Bernard’s argument in this assignment not previously adjudicated.

Bernard argues that the trial court erred when it found that he lacked credibility based upon his purposeful misrepresentation in two preemployment physicals. We find this argument unconvincing.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder 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.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

| .¡Bernard goes to great lengths to convince this court that the trial court was not required to find him lacking in credibility when he lied in two preemployment physicals, but was truthful as to why he did so in court. We agree with Bernard. However, the question before us is not whether lying on two preemployment physicals mandates a finding such as was made by the trial court, rather the question before us is whether lying on two preemployment physicals provides a reasonable basis for the trial court to find as it did.

To help support his position, Bernard cites Robertson v. Scanio Produce & Institutional Foods, Inc., 449 So.2d 459 (La.1984). In Robertson, our Supreme Court found that there was no sound reason in the record for the trial court to reject the uncontroverted testimony of a claimant for workers’ compensation benefits.

Here, the trial court elucidated that its rejection of part of Bernard’s testimony was based not only on the preemployment physicals, but also on when Bernard was impeached regarding how much weight he had to lift at work, and on when Bernard described his pain in court as constant, while Dr. Humphries’ medical records showed that Bernard described his pain as occurring approximately twice a month. Moreover, in Robertson, the claimant sustained a back injury involving a herniated disc and resulting in surgery. Surgery is an objective, measurable circumstance of an injury. Here, we only have Bernard’s testimony and Dr. Humphries’ testimony in which the doctor, when confronted with an established fact that Bernard had lied on two preemployment physicals, stated that his opinion may change. Thus, we find that Bernard’s arguments in this assignment are also without merit.

ASSIGNMENT OF ERROR NUMBER THREE:

Bernard alleges in his final assignment of error that the trial court erred by 1 Bgranting no special and general damages past August 28, 2006. Further, Bernard contends that while the trial court did award an amount for general damages suffered from March 23, 2006, to August 28, 2006, it erred because the amount was abusively low.

In addressing Bernard’s third assignment, we must look to two different standards of review. Bernard’s first allegation is that the trial court should have found that the accident caused the pain and suffering he was allegedly enduring past August 28, 2006. As we stated in Assignment of Error number one, such finding are findings of fact and the standard of review of such questions is that of manifest error. Housley, 579 So.2d 973.

Bernard saw Dr. Humphries on August 28, 2006. The progress notes from that visit are as follows:

Mr. Bernard states that his neck continues to do well and has given no pain since last visit.
The cervical, thoracic and lumbar areas were all free of tenderness. He moved his neck fully and with no associated pain.
My plans were to discharge Mr. Bernard today if he had no recurrent pain between now and the last visit. Such is reported to be the case.

Bernard did not see Dr. Humphries again until December 20, 2006, nearly four months later. While Dr. Humphries did testify that this was not out of the ordinary for some spinal injuries, we have already determined in Assignment of Error number one that the trial court had a reasonable basis for disregarding some, or all, of Dr. Humphries’ testimony based on Dr. Humphries’ reaction to learning that Bernard had denied any neck pain or accidents on two preemployment physicals, one of which was | ¡just days after Bernard saw Dr. Humphries with complaints of neck pain. As such, based on that finding, we find no error in the trial court’s decision to limit Bernard’s recovery to the pain and suffering he endured prior to August 28, 2006.

Bernard’s second allegation in this assignment is related to the quantum assessed by the trial court. This court, in Guillot v. Doe, 03-1754, p. 5 (La.App. 3 Cir. 6/30/04), 879 So.2d 374, 379-80 (footnotes omitted), stated, “[a]n appellate court should rarely disturb an award of damages due to the great and, even, vast discretion vested in the trial court. We can disturb such awards, only, when the trial court clearly abused its discretion.”

Bernard cites Kilpatrick v. Alliance Casualty & Reinsurance Co., 95-17 (La.App. 3 Cir. 4/5/95), 663 So.2d 62, writ denied, 95-2018 (La.11/17/95), 664 So.2d 406, to bolster his position that the quantum awarded, $4,500.00 in general damages and $505.00 in special damages, for “roughly a six month period” was abusively low. First, as our Supreme Court stated in Bourdier v. Louisiana Western R. Co., 133 La. 50, 62 So. 348, 349 (La.1913)(citing Eichorn’s Case, 114 La. 712, 38 South. 526 (1904)) “each case must stand on its own special facts”. Moreover, we find Kilpatrick has little relation to the case before us.

In Kilpatrick, the plaintiff sought medical treatment two days after the accident, underwent physical therapy and was prescribed pain medication for over seven months, and complained of headaches, neck pain, and sleeplessness causing him to be treated with antidepressant sedatives and steroid injections. Further, the plaintiff in Kilpatrick had a preexisting medical condition that was aggravated by the accident in addition to a cervical strain.

Here, the trial court only found just over five months of Bernard’s pain and suffering were related to the accident. Further, unlike the plaintiff in Kilpatrick, |inBernard did not seek medical treatment for a month and a half, was not prescribed any pain medication or physical therapy, had minimal complaints of intermittent pain, and had no preexisting condition that was aggravated by the accident.

Further, the date of the accident was March 23, 2006. Bernard did not seek treatment until May 2, 2006, and the trial court found that none of the pain and suffering Bernard alleged to have endured past August 28, 2006, were related to the accident. The actual time for which the trial court compensated Bernard was five days more than five months, calculated from the date of the accident rather than the date when Bernard actually sought treatment. This is not “roughly six months,” as Bernard claims. As such, awarding Bernard just under $900.00 per month for what Bernard described to Dr. Humphries as pain only a couple times a month, and for what Dr. Humphries diagnosed as a soft tissue neck sprain/strain, is not unreasonable.

Accordingly, we find that the trial court was not manifestly erroneous in limiting Bernard’s recovery to pain and suffering endured prior to August 28, 2006. Additionally, we find that the quantum awarded by the trial court, while perhaps on the lower end of the reasonable scale associated with the circumstances of this case, was not abusively low. As such, we dismiss this final assignment of error raised by Bernard.

CONCLUSION:

Bernard raised three assignments of error. After reviewing the record, we find that none of the assignments raised by Bernard have any merit. As a result, we affirm the trial court’s judgment and assess all costs of these proceedings to Bernard.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Robert Elijah Lamar MINCEY, a/k/a Robert Bryant.
    No. 09-155.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    John Foster DeRosier, District Attorney — -14th Judicial District Court, Carla S. Sigler, Assistant District Attorney — 14th Judicial District Court Lake Charles, LA, for Plaintiff/Appellee — State of Louisiana.
    Mary E. Roper, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant — Robert Elijah Lamar Mincey, a/k/a Robert Bryant.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

_JjThe Defendant, Robert Elijah Lamar Mincey, a/k/a Robert Bryant, was adjudicated to be a second habitual offender and sentenced to serve fifty years at hard labor, without benefit of parole, probation, or suspension of sentence on an underlying manslaughter conviction. On appeal, he argues that his sentence is excessive. We disagree and affirm.

LAW AND DISCUSSION

Pursuant to La.R.S. 14:31, the underlying manslaughter conviction subjected Defendant to a term of up to forty years. Therefore, as a second habitual offender, La.R.S. 15:529.1(A)(2)(a) subjected him to a term between twenty and eighty years. Thus, his sentence falls in the middle of that range. This court has observed:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

19 State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, [58], writ denied 99-0433 (La.6/25/99), 745 So.2d 1183, our colleagues on the Fifth Circuit Court of Appeal noted three factors the appellate court should consider in reviewing a judge’s sentencing discretion. They are:

1. the nature of the crime,
2. the nature and background of the offender, and
3. the sentence imposed for similar crimes by the same court and other courts.
State v. Telsee, 425 So.2d 1251 (La.1983); State v. Richmond, 97-1225 (La.App. 5 Cir. 3/25/98), 708 So.2d 1272.

State v. Baker, 06-1218, pp. 7-8 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, 89, writ denied, 07-320 (La.11/9/07), 967 So.2d 496, and writ denied 07-1116 (La.12/7/07), 969 So.2d 626.

The trial court’s comments during sentencing touched on the first two factors cited in Baker and Lisotta:

This Court determined there is a prior felony that it will take into consideration for enhancement purposes.
Under the circumstances for regular Manslaughter, under these circumstances this young man could have been sentenced from zero to 40 years.
With the enhancement on the 529.1, the penalty then escalates to no less than one half, which is 20 years to up to twice, which is up to 80 years.
So that’s the territory that this Court is looking for when it comes to sentencing regarding you, Robert.
As to the Dejean family, I can’t give you what you want. What you want is your son back, I can’t give you |3your son back. Ms. Bryant, I can’t give you your son back either because he’s got to pay for what he’s done.
What’s really so tragic in this situation is that the person who had the least to do with anything that caused this situation to escalate into somebody being shot is the one that got shot.
He had the least to do with what was going on, walked out and took a bullet to the chest that killed him, by the coroner’s estimations, instantly.
The aggravating circumstances this Court has heard and recognizes is that under the circumstances from the shooting that night there was a very real risk of harm to others besides the victim. Under the close quarters that this shooting took place, it’s remarkable that somebody else wasn’t killed also.
Of course, the very fact that there was a handgun that was used means a dangerous weapon was used to commit this crime.
Other circumstances that this Court takes into consideration is the situation regarding where this young man, Mr. Mincey, almost immediately upon getting to Lake Charles from California arms himself with a weapon and for all intents and purposes, has set up shop to start selling drugs.
Of course, this Court would be remiss in not taking into consideration the things it must take into consideration regarding the nonaggravating circumstances.
The previous felony which he is accused of having committed was not a violent crime, it was a drug crime. Again, recalling the circumstances from the trial, I recognize that this was a situation that Mr. Mincey did not apparently start himself, but allowed to escalate.
He did attempt to retreat at some point by going outside. I think the evidence bears that out. But obviously Mr. Mincey didn’t do ultimately what he could have done to have kept this thing from happening, which was totally retreat.
Taking all that into consideration this Court sentences Robert Mincey to 50 years Department of Corrections without benefit of parole, probation, or suspension of sentence.

|4Regarding the third Baker/Lisotta factor, we note that in State v. Loston, 03-977 (La.App. 1 Cir. 2/23/04), 874 So.2d 197, 210-11, writ denied, 04-792 (La.9/24/04), 882 So.2d 1167, the first circuit affirmed a forty-year sentence for a second offender whose underlying offense was manslaughter, and whose criminal history included violent offenses. In State v. Mims, 97-1500 (La.App. 4 Cir. 6/21/00), 769 So.2d 44, writ denied, 00-2255 (La.6/22/01), 794 So.2d 781, and writ denied, 00-2270 (La.6/22/01), 794 So.2d 782, the fourth circuit approved a forty-year sentence for a second felony offender, even though the evidence suggested a co-defendant may have fired the fatal shots, and the defendant’s prior conviction was non-violent, because the evidence also indicated the defendant instigated the situation that led to the shooting. In State v. Walker, 99-2868 (La.App. 4 Cir. 10/18/00), 772 So.2d 218, the fourth circuit upheld a maximum eighty-year sentence for a second habitual offender whose underlying offense was manslaughter, in part because he callously dumped his female victim’s nude body in a public street, and he had a history of fighting women. That history was reflected mainly in arrests, rather than convictions. Taken together, these cases indicate that Defendant’s mid-range sentence is not outside the norm of Louisiana jurisprudence.

In light of the sentencing factors stated in Baker and Lisotta, the trial court did not abuse its discretion by sentencing Defendant to fifty years of imprisonment.

Defendant also argues the trial court erred by denying parole. The State concedes this argument is correct, pursuant to La.R.S. 14:31, La.R.S. 15:529.1, and La.R.S. 15:574.4. At the time of the offense, La.R.S. 14:31 and La.R.S. 15:529.1 did not provide for denial of parole. Pursuant to La.R.S. 15:574.4, “parole eligibility is | ^... determined by the Department of Corrections.” State ex rel. Porter v. State, 04-2080, p. 1 (La.11/28/05), 916 So.2d 123. However, as the State suggests, this defect can be easily remedied. We delete the portion of the sentencing language that denies parole, and order that the minutes be amended to reflect the change. See, e.g., State v. Dupree, 07-98 (La.App. 3 Cir. 5/30/07), 957 So.2d 966, State v. Roberts, 06-765 (La.App. 3 Cir. 1/17/07), 947 So.2d 208, writ denied, 07-362 (La.10/5/07), 964 So.2d 938, State v. Poirrier, 04-825 (La.App. 3 Cir. 12/1/04); 888 So.2d 1123.

Regarding “good time” (diminution of sentence), the trial court stated:

Taking all that into consideration this Court sentences Robert Mincey to 50 years Department of Corrections without benefit of parole, probation, or suspension of sentence.
Mr. Mincey, you have two years from the final judgment and finality of this matter to apply for post-conviction relief. It is not subject to diminution for good behavior.
You have already given your date of birth.

The trial court’s language was merely advisory, and thus there is no action for this court to take. This court has explained, “[ajccording to the supreme court, ‘a trial judge lacks authority under La.R.S. 15:571.3(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is “directed to the Department of Corrections exclusively.” State v. Narcisse, 97-3161, p. 1 (La.6/26/98), 714 So.2d 698, 699, citing State ex rel. Simmons v. Stalder, 93-1852 (La.1/6/96), 666 So.2d 661.” State v. Benedict, 04-742, p. 3 (La.App. 3 Cir. 11/10/04), 887 So.2d 649, 652.

|BFor the reasons discussed, the denial of parole eligibility is deleted. However, the sentence is not excessive.

CONCLUSION

We amend the sentence to delete the language denying Defendant eligibility for parole, and direct the district court to record the amendment in the minutes. In all other respects, the sentence is affirmed.

AFFIRMED AS AMENDED.

      . On April 19, 2004, he was convicted of possession of cocaine, a felony, in California.

      . That conviction is the subject of our opinion in State v. Robert Elijah Lamar Mincey, a/k/a Robert Bryant, 08-1315 (La.App. 3 Cir. 6/3/09), 14 So.3d 613, 2009 WL 1531570.

      . However, the defendant's sentence was vacated due to an error patent. Mims, 769 So.2d 44.

      . The court was required to make such an advisement, pursuant to La.Code Crim.P. art. 894.1(D)(1).

      . The trial court had authority to deny diminution of sentence under La.Code Crim.P. art. 890.1(B), since the underlying offense, manslaughter, is a crime of violence. However, the court’s language, cited above, does not represent an exercise of such authority.


author: GENOVESE, Judge.

text:
    Bobby SHIRLEY v. J & S DOZER SERVICES, INC.
    No. 09-184.
    Court of Appeal of Louisiana, Third Circuit.
    June 10, 2009.
    Robert L. Beck III, Rivers, Beck, Dal-rymple & Ledet, Alexandria, LA, for Plaintiff/Appellant Bobby Shirley.
    Deanne B. McCauley Rabalais, Unland & Lorio Covington, LA, for Defendant/Ap-pellee J & S Dozer Services, Inc.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

Iiln this workers’ compensation case, Claimant, Bobby Shirley, appeals the workers’ compensation judgment denying his claim for workers’ compensation benefits based on his failure to prove the occurrence of an accident arising out of and in the course and scope of his employment with J & S Dozer Services, Inc. (J & S). For the following reasons, we affirm.

FACTS

Mr. Shirley was employed by J & S as a bulldozer operator. After allegedly being injured in an unwitnessed work-related accident on May 7, 2007, Mr. Shirley sought workers’ compensation benefits from J & S. J & S denied his claim, and Mr. Shirley filed a Disputed Claim for Compensation (1008).

The 1008 filed by Mr. Shirley identified a date of accident occurring on “05/07/07 at approximately 7:00 a.m. in Bienville Parish, Louisiana.” Mr. Shirley asserted that he “initially began experiencing pain in his lower back in late February or early March of 2007, after the bulldozer he was operating slid off of a road he was paving.” Although he missed work following this incident, he “was able to adequately perform his job duties.”

With respect to the alleged May 7, 2007 incident, the 1008 set forth that Mr. Shirley “was climbing onto his bulldozer, when his foot slipped[,] thereby causing him further injury.” As a result thereof, Mr. Shirley sought medical and indemnity benefits as well as penalties and attorney fees.

In its answer, J & S denied that Mr. Shirley had “sustained an ‘accident’ or other ‘injury’ arising out of and in the course and scope of his employment.” J & S asserted that the medical condition of Mr. Shirley was “the result of a pre-existing accident and/or pre-existing injury, which [had] in no way been exacerbated by an I ¿accident within the course and scope of [Mr. Shirley’s] employment with [J & S,] and[,] therefore, no medical benefits nor indemnity benefits [were] due.”

Following a trial on July 24, 2008, the workers’ compensation judge (WCJ) took the matter under advisement. The WCJ rendered judgment on October 16, 2008, at which time oral reasons were provided. Therein, the WCJ stated that “in the case of Mr. Shirley, the [e]ourt does believe that there is sufficient evidence objective in nature to cast doubt upon Mr. Shirley’s claim for workers’ compensation benefits.” The WCJ signed a judgment in accordance therewith in favor of J & S, dismissing the claims of Mr. Shirley. Mr. Shirley appeals.

ISSUES

Mr. Shirley presents the following issues for our review:

1. Did the WCJ commit legal error by taking judicial notice of facts not in evidence and not properly subject to judicial notice?
2. Did the WCJ commit manifest, as well as legal error, by finding that [Mr.] Shirley was not involved in an accident arising out of and in the course of his employment with J & S Dozer Service^], Inc.?
3. Did the WCJ commit manifest, as well as legal error, by finding that [Mr.] Shirley did not establish by a preponderance of the evidence that he sustained a disabling injury due to a work[-]related accident?
4. Did the WCJ commit legal error by not awarding [Mr.] Shirley penalties and attorney fees due to [the] employer’s failure to reasonably controvert claimant’s entitlement to an a [sic] evaluation by a physician of his choice pursuant to La.R.S. 23:1121, La.R.S. 23:1124, and La.R.S. 1201[?]

LAW AND DISCUSSION

Judicial Notice

On appeal, Mr. Shirley asserts that “the WCJ committfed] legal error by taking judicial notice of facts not in evidence and not properly subject to judicial notice.” Hence, he asserts that this court should conduct a de novo review of the record. We | ..¡disagree.

Mr. Shirley first asserts that it was improper for the WCJ to have taken judicial notice of the locations of different places that he could have gone for medical treatment. We first note that although counsel for Mr. Shirley objected to this line of questioning by defense counsel, the grounds stated for the record were “[n]o foundation and speculation.” The statements made by the WCJ addressed locations and distances which are not “adjudicative facts” as defined by La.Code Evid. art. 201(A). Additionally, the comments of the WCJ were not facts “subject to reasonable dispute.” La.Code Evid. art. 201(B).

Mr. Shirley’s second contention on the issue of judicial notice is that “it was improper for the WCJ to draw negative inferences from the fact that [Mr.] Shirley chose to rebut defendant’s allegations” that he had injured his back while lifting an outboard motor. We do not find that this assertion by Mr. Shirley in any way invokes the application of judicial notice, and, therefore, we find no merit to this contention.

The third contention of Mr. Shirley as to “[t]he WCJ’s abuse of his prerogative and misuse of the doctrine of judicial notice” involved comments made by the WCJ, during his oral reasons, on the contents of certain medical records. Again, we do not find that such comments in any way invoke the application of the doctrine of judicial |4notice, nor do we find that the comments were relevant to the WCJ’s determination that Mr. Shirley failed to meet his burden of proving the occurrence of a work-related accident. Rather, such comments are germane to the question of the nature and extent of injury and/or disability.

For the foregoing reasons, we do not find that the WCJ improperly took judicial notice of facts not in evidence. We also do not find any legal error warranting a de novo review of the record.

Proof of work-related accident

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the [Office of Workers’ Compensation (OWC’s) ] findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Butterfield v. Turner Indus., 06-1098, p. 3 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 1,479, writ denied, 07-507 (La.4/27/07), 955 So.2d 692.

Louisiana Revised Statutes 23:1031(A) requires an employee seeking workers’ compensation benefits to establish that he sustained “personal injury by accident arising out of and in the course of his employment.” The term “accident” is defined in La.R.S. 23:1021 as:

(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

Relevant to the present appeal is this court’s recent explanation of an employee’s burden of proving the occurrence of an alleged unwitnessed, work-related accident as follows:

The claimant’s burden of proof is by a preponderance of the evidence, even if the accident is unwitnessed. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). In Bruno, 593 So.2d at 361 (citations omitted), the supreme court set forth the following criteria for cases in which proof of the accident is supported by the claimant’s testimony alone:
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.

Portalis v. Our Lady of Lourdes Reg’l Med. Ctr., 07-1509, pp. 4-5 (La.App. 3 Cir. 5/14/08), 984 So.2d 197, 200, writ denied, 08-1283 (La.9/19/08), 992 So.2d 926.

Mr. Shirley asserts that his “version of the work accident and his injuries has never changed” and that “[t]he medical evidence introduced into evidence corroborated his testimony that he was involved in an accident arising out of and in | Rthe court of his employment with J & S.” Finally, Mr. Shirley contends that “several witnesses’ testimony corroborated [his] version of events as well.” We find that the record does not support these assertions.

Mr. Shirley testified at trial that he was injured on May 7, 2007, while working as a dozer operator for J & S when he attempted “to step up on a dozer and [his] foot slipped.” He stated that he landed with his “right leg under him” and that he experienced pain in his right leg and lower back. According to Mr. Shirley, he contacted Stanley Garrett, the owner of J & S, that morning and reported to Mr. Garrett that he slipped on a dozer and hurt his back. It was Mr. Shirley’s testimony that Mr. Garrett advised him to go for treatment at Trinity Chiropractic Clinic.

A review of the record reveals that Mr. Shirley’s version of events at trial differed considerably from his earlier deposition testimony with which he was impeached. When giving his deposition, Mr. Shirley testified that he advised Mr. Garrett on May 7, 2007, that he had slipped; however, he did not relate to his employer that it had occurred that morning. Also contrary to his trial testimony was Mr. Shirley’s earlier testimony that as of May 8, 2007, he had not advised Mr. Garrett that he was injured on the job.

Mr. Garrett’s recollection of his conversations with Mr. Shirley on May 7, 2007, differed significantly from that of Mr. Shirley. Mr. Garrett testified that he did not even know for certain if Mr. Shirley ever arrived at the job site the morning of May 7, 2007. Mr. Garrett explained that he called Mr. Shirley at approximately 7:30 a.m. when he was advised that Mr. Shirley had not reported to work that morning. It was Mr. Garrett’s testimony that Mr. Shirley told him that “he was hurting, he was sick, it was foggy[,J and he was gonna be late.” About an hour later, Mr. Shirley galled him and stated that his back was hurting and that he was going to a chiropractor. During this second phone conversation, either Mr. Garrett or the passenger in his vehicle, Randy Williford, told Mr. Shirley where a chiropractor’s office was located. It was Mr. Garrett’s understanding that Mr. Shirley was leaving the job site to go to a chiropractor, but he had no way of knowing if he had actually gone to the job site that morning.

Mr. Garrett was adamant that Mr. Shirley did not advise him during the May 7, 2007 phone conversation that he had injured himself at work that morning. In fact, it was Mr. Garrett’s testimony that at no time in the month of May did Mr. Shirley ever tell him that he injured himself while getting off a dozer. This is true despite Mr. Garrett “ask[ing] him several times if he had a job injury, and [Mr. Shirley saying that] it was nothing related to his job.” The first time Mr. Shirley made any reference to Mr. Garrett about having slipped on a dozer and injuring himself was June 3, 2007.

Mr. Williford, the passenger in Mr. Garrett’s vehicle, who was not an employee of J & S at that time, had the same recollection as Mr. Garrett about the substance of his conversations with Mr. Shirley the morning of May 7, 2007. Mr. Williford explained that Mr. Garrett was speaking on the speaker phone in his vehicle; therefore, he was able to hear both Mr. Garrett and Mr. Shirley speaking. Mr. Williford did confirm that there was a discussion about Mr. Shirley wanting to see a chiropractor; however, Mr. Shirley did not mention anything to Mr. Garrett about being injured on a bulldozer that morning.

Mr. Garrett also testified about subsequent conversations between him and Mr. Shirley. Even after Mr. Shirley reported that he had been injured on the job, he “couldn’t give [Mr. Garrett] a date or a time” that the alleged work-related injury | ^occurred. Mr. Garrett explained that he did not have sufficient information to complete an accident report because Mr. Shirley remained unable to describe the occurrence of an accident. In the words of Mr. Garrett, Mr. Shirley’s explanation was that he was injured due to “[a] series of operations.” This explanation is consistent with Mr. Shirley’s own admissions that the nature of the work he performed resulted in a jarring of his back which caused soreness on a regular basis. Mr. Shirley stated that his work was such that it yielded manageable back pain not requiring treatment.

Mr. Garrett’s testimony also revealed that Mr. Shirley missed work frequently. Although Mr. Garrett described Mr. Shirley as a good dozer operator, it was clear from his testimony that Mr. Shirley had repeated attendance problems. One example provided by Mr. Garrett of particular relevance occurred in April of 2007, when Mr. Shirley “claimed he hurt his back picking up an outboard motor.” This testimony of Mr. Garrett, which was consistent with that of other witnesses, expressly contradicted that of Mr. Shirley. Although Mr. Shirley at all times denied ever having injured himself in that manner, he did admit to having worn a back brace to work which, according to Mr. Garrett, occurred during that particular time frame.

Additionally, Mr. Shirley’s co-employees acknowledged and verified that the only incident which they were aware of involving an injury to Mr. Shirley’s back was the incident of his picking up an outboard motor. Mr. Williford, who had worked with Mr. Shirley prior to May 7, 2007, testified that Mr. Shirley had complained to him of back pain while they were working together. Mr. Williford learned from Mr. Shirley that he hurt his back while picking up an outboard motor. Mr. Freddie Lee, who also worked with Mr. Shirley, testified that Mr. Shirley first told him that he had back pain in March or April of 2007 when Mr. Shirley “said he had hurt his back | ^picking up an outboard motor.” Mr. Lee also saw Mr. Shirley wearing a back brace at work, which he believed was at the same time that Mr. Shirley told him about the outboard motor incident. Additionally, Mr. Lee testified that he never heard Mr. Shirley complain of back pain from anything other than kidney stones and the incident involving the motor. In fact, he stated that Mr. Shirley told him about the injury involving the outboard motor “[a]t least two or three times.”

Mr. Shirley did acknowledge a prior back injury in addition to that which was a result of his regular work activity. In the early 1990s, he stated that he injured his back and was treated for same. Mr. Shirley admitted to having soreness in his back due to the nature of his job, but denied that his back had gotten progressively worse before May 2007. However, this testimony of Mr. Shirley contradicted his deposition testimony wherein he admitted that “about the last month there before I slipped!,] it was getting to where it was. At times, it would be pretty bad.”

Mr. Shirley called as a witness Contance Marie Lacher, his fiancée, to provide corroborating testimony on his behalf. She recalled that Mr. Shirley called her on May 7, 2007, and told her that he hurt his back that day when he slipped off a dozer. Additionally, although Mr. Garrett denied same, Ms. Lacher also stated that she informed Mr. Garrett that Mr. Shirley had slipped off a dozer and had hurt his back.

The testimony of other witnesses called by Mr. Shirley, however, cast further doubt on the manner in which he contends the May 7, 2007 accident occurred. Elwin Ray Shirley, Mr. Shirley’s cousin, testified that Mr. Shirley called him on May 7, 2007, and told him that he needed to go to the doctor because he slipped off a dozer while working. Yet, he testified that Mr. Shirley told him that “he landed on his feet and he twisted” which differs from Mr. Shirley’s account of the incident. Similarly, linBobby George Shirley, Mr. Shirley’s son, recalled being told by his father simply that “he slipped.”

As the WCJ expressly noted, the medical evidence also casts doubt on Mr. Shirley’s testimony. The records of the chiropractor, who treated Mr. Shirley on the day of the alleged accident, document a history of Mr. Shirley jarring his back two weeks 'prior when he was backing a dozer and hit a stump. When Mr. Shirley presented to Huey P. Long hospital on May 10, 2007, the hospital records reflect that he related a twenty-eight-year history of back problems. These records also reflect, in one portion thereof, that he reported intermittent back pain of a two-week duration, yet, in another, a duration of four days is documented with the description that “his foot slipped from under him while taking a step.” Thereafter, and subsequent to Mr. Shirley retaining counsel and filing the 1008, he returned to Huey P. Long in August of 2007. As the WCJ noted, the records of Huey P. Long of August 4, 2007, contain the first documentation that Mr. Shirley related his present complaints as having been the result of his foot slipping while he was getting onto a bulldozer. On these subsequent visits, Mr. Shirley provided a detailed account of how the May 7, 2007 accident allegedly occurred.

In the instant matter, the WCJ provided a detailed recitation of the testimony and medical evidence upon which he based his decision. We agree with the WCJ that “the objective evidence east[s] serious doubt upon Mr. Shirley’s claim.” Additionally, his testimony is not corroborated by the circumstances following the accident. Further, Mr. Shirley’s testimony at trial was inconsistent with his earlier deposition testimony. The testimony of the witnesses also varied as to the manner in which.Mr. Shirley related to them that he sustained injury. Moreover, the testimony h tof Mr. Shirley’s co-employees was consistent in that he told them that he sustained an injury involving an outboard motor. The co-employees also correlated this incident with Mr. Shirley wearing a back brace prior to May 2007. The medical records also contain conflicting histories of both when and how Mr. Shirley sustained injury. Also significant is Mr. Garrett’s testimony that Mr. Shirley repeatedly denied that he sustained a work-related injury. We, therefore, find no manifest error in the conclusion of the WCJ that Mr. Shirley failed in his burden of proving the occurrence of a work-related accident. Having found that Mr. Shirley failed to prove the occurrence of a work-related accident, his remaining assignments are moot and need not be addressed.

DECREE

For the foregoing reasons, the workers’ compensation judgment is affirmed. Costs of this appeal are assessed to Bobby Shirley.

AFFIRMED.

      . Louisiana Code of Evidence Article 201 provides, in relevant part, as follows:
      A. Scope of Article. This Article governs only judicial notice of adjudicative facts. An "adjudicative fact" is a fact normally determined by the trier of fact.
      B. Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
      (1) Generally known within the territorial jurisdiction of the trial court; or
      (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.


author: COOKS, Judge. AMY, J.,

text:
    John MAYBRIER v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 08-1508.
    Court of Appeal of Louisiana, Third Circuit.
    June 10, 2009.

      R. Scott lies, Lafayette, LA, for Plaintiff-Appellant: John Maybrier.
    Marc W. Judice, H.L. Tuten, III, Judice & Adley, Lafayette, LA, for Defendants-Appellees: Dr. Gerald Murdock and Lam-mico.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and J. DAVID PAINTER, Judges.
   COOKS, Judge.

11 Plaintiff, John Maybrier, appeals the judgment of the trial court granting the Defendant’s Motion for Summary Judgment and dismissing his medical malpractice suit. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On December 1, 2004, John Maybrier was admitted to Savoy Medical Center for a hemorrhoidectomy for which an informed consent form was executed. Plaintiff alleges in his petition that in addition to the hemorrhoidectomy consented to by him, Dr. Murdock took it upon himself to perform a colonoscopy for which no informed consent had been given. The colo-noscopy resulted in a perforated bowel requiring additional surgery.

We note Plaintiff has at all times maintained he was not aware a colonoscopy would be performed on the date of the surgery. Defendants have argued there were discussions with Plaintiff regarding the possibility of a colonoscopy. The informed consent form which Plaintiff signed on that date, lists only hemorrhoidectomy, in typed letters, in the description of the procedure. The word colonoscopy was handwritten on the informed consent. In any event, it is undisputed the informed consent failed to list the known, material risks associated with a colonoscopy.

The matter was initially heard by a medical review panel. After hearing the evidence and reviewing the submitted documents, including the patient consent form, the panel issued unanimous findings concluding that Dr. Murdock did not deviate from the standard of care. The panel determined that, despite the complications, Dr. Murdock’s care and procedures were appropriate and met the applicable standards of care. Although counsel for Plaintiff maintained in a position paper to the panel that the issue of consent was the “focus” of Plaintiffs case, the panel did not address the |2issue of consent in its findings.

Plaintiff subsequently filed a timely petition for damages based on the lack of informed consent for the colonoscopy procedure against Dr. Murdock and his insurer, Louisiana Medical Mutual Insurance Company (LAMMICO). Defendants filed a motion for summary judgment. The trial court denied the motion, noting Dr. Paul Breaux, a member of the medical review panel, testified by deposition that the form signed by Plaintiff failed to meet the applicable standard of care for securing informed consent.

Subsequently, Defendants deposed Plaintiff, wherein Plaintiff acknowledged even if he was aware of the risks of a perforated colon as a result of a colonos-copy, he still likely would have had the colonoscopy performed, but with a specialist/gastroenterologist rather than a general surgeon. Defendants again filed a motion for summary judgment, contending that Louisiana jurisprudence holds if a patient admits he would have agreed to allow another physician to perform the medical procedure in question, despite any potential risks, there is no claim for lack of informed consent. Plaintiff disputed this contention, noting he testified he would have only allowed a gastroenterologist, which Dr. Murdock was not, to perform the procedure.

The trial court granted the motion for summary judgment, issuing the following written reasons:

In the instant motion, defendants allege that in the deposition of plaintiff, Mr. Maybrier, he testified that had he been informed of all the risks of the Colonoscopy he would have opted to have it done by a Gastroenterologist.
In support of its motion defendants cite the case of Livings v. Lanasa[LaNasa], 552 So.2d 1281 (La.App. 5th Cir.1989) which reflects a similar set of circumstances which are present in the instant case.

|sAfter reading all of the pleadings, memos and arguments of counsel, this Court finds that Livings v. Lanasa[LaNasa], cited supra, holds water and requires that this Court grant defendants Motion for Summary Judgment.

Plaintiff appeals, asserting the trial court erred in granting the motion for summary judgment.

ANALYSIS

It is well-settled that “[ajppellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183; Leger v. Louisiana Med. Mut. Ins. Co., 98-1098 (La.App. 3 Cir. 3/31/99), 732 So.2d 654, 657, writ denied, 99-1253 (La.6/18/99), 745 So.2d 30. The burden of persuasion remains always with the movant.

According to La.R.S. 9:2794(A), the plaintiff bears the burden of establishing a breach of the standard of care in a medical malpractice case. The burden is three pronged. He must first prove the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed in Louisiana and actively practicing in a similar community or locale and under similar circumstances. Still in connection with the first prong, he must also show the location where the defendant practices in a particular specialty and where the alleged acts of negligence raise issues peculiar to that specialty, then prove the degree of care ordinarily practiced by physicians within that specialty. The second prong requires the plaintiff to prove that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence along with his best judgment in the application of that skill. Third, causation must be proven, namely, that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, plaintiff suffered injuries that he would not have otherwise suffered.

| 4As in a case alleging breach of the medical standard of care, the plaintiff in an informed consent case bears the burden of proof. He must show: (1) the existence of a material risk which the physician must disclose; (2) the failure of the physician to inform the patient of a material risk; (3) the realization of the material risk; and (4) a causal connection between the failure to inform the patient of the risk and realization of the risk. Hondroulis v. Schuhmacher, 612 So.2d 859 (La.App. 4 Cir.1992) (citing Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988)); Leger, 732 So.2d 654; Ardoin v. Murdock, 97-1468 (La.App. 3 Cir. 4/15/98), 711 So.2d 837, writ denied, 98-1362 (La.7/2/98), 724 So.2d 734; Guidry v. Neu, 97-810 (La.App. 3 Cir. 12/10/97), 708 So.2d 740.

The record before us establishes when Plaintiff consulted with Dr. Murdock on November 7, 2004, his chief complaint was hemorrhoids. Dr. Murdock’s notations for that visit read: “Went to ER sat at Savoy for hemorrhoids. 8 to 9 years with hemorrhoids (illegible) — painful—exam in 2 plus — Diagnosis: Hemorrhoids — recommendation: Hemorrhoidectomy (illegible).” After discussing his treatment options, Plaintiff agreed to undergo the hemor-rhoidectomy. He presented on December 1, 2004 at Savoy Medical Center for the hemorrhoidectomy.- He was given an informed consent for the hemorrhoidectomy, which he signed. The copy of the informed consent in the record also shows the word colonoscopy was handwritten next to the typed word “hemorrhoidecto-my.” Plaintiff denied any consent was ever given for the performance of a colo-noscopy on that date. The procedure was successfully completed; however, Dr. Mur-dock determined that Plaintiff had an asymptomatic colon. Dr. Murdock, knowing that Plaintiff had a family history of colon cancer, believed he might benefit from a colonoscopy. While doing so Dr. Murdock perforated the bowel, which required additional surgery and this lawsuit.

|RIt is clear from the record, that the informed consent which Plaintiff read and signed on the morning of his surgery did not list material risks pertinent to a colo-noscopy. Dr. Paul Breaux, a member of the medical review panel, specifically concluded in his deposition that the consent form failed to meet the applicable standard of care for informed consent. The trial court agreed and denied Defendants’ first motion for summary judgment on this issue. Although Defendants spend much space in brief arguing the informed consent form was sufficient even as it relates to material risks associated with a colonos-copy, the record does not bear that out. In granting Defendants’ motion for summary judgment on the issue of informed consent, the trial court did so relying solely on the Fifth Circuit Court of Appeal decision in Livings v. LaNasa, 552 So.2d 1281 (La.App. 5 Cir.1989).

In Livings, the patient was suffering from blood and clots in his urine. He was diagnosed as having a bladder tumor and a bladder operation was recommended by Dr. LaNasa, to which the patient consented. During the course of the surgery, Dr. LaNasa discovered that the patient actually suffered from an abnormal growth of prostatic tissue which protruded into the bladder cavity. Therefore, instead of performing surgery to remove a bladder tumor, a transurethral resection of the prostate was performed. The patient filed suit alleging an unauthorized surgical procedure was performed, and that Dr. LaNasa failed to disclose information regarding the surgical procedure performed as well as its known risks. The patient maintained had he been adequately informed, he would not have agreed to the prostate surgery by Dr. LaNasa but would have chosen another physician, Dr. Green, who twelve years earlier had successfully performed prostate surgery on him. Dr. LaNasa filed a motion for summary judgment urging the patient’s signature on the surgical consent form, coupled with the circumstances in the case precluded recovery. | r,The trial judge agreed.

The court ruled that Dr. LaNasa had performed an authorized surgical procedure and that it was of no moment that the growth removed was from the prostate rather than the bladder. The court concluded Dr. LaNasa could not be held liable for a lack of informed consent based on the patient’s assertion that he would have chosen another physician to perform the surgery had he known that the actual problem was the prostate. The Livings court stated as follows:

The trial judge reasoned there is “no issue of material fact as to whether [Livings] would have declined the surgery, even assuming that bladder incontinence was a known material risk not disclosed to him.” He based this conclusion on Livings’ assertion he would have consented to the surgery by Dr. Green rather than by Dr. LaNasa had he known the actual problem was the prostate. Therefore, in retrospect Livings would have chosen another surgeon. Furthermore, Livings does not allege any negligence on Dr. LaNasa’s part.
In Hondroulis v. Schumacher, 546 So.2d 466, 470 (La.1989) the Supreme Court held:
There must be a causal relationship between the doctor’s failure to disclose material information and material risk of damage to the patient [citations omitted]. Because of the likelihood of a patient’s bias in testifying in hindsight on this hypothetical matter, this court and others have adopted an objective standard of causation: whether a reasonable patient in the plaintiffs position would have consented to the treatment or procedure had the material information and risks been disclosed, [citations omitted].
Since Livings would have consented to the surgery there is no issue of material fact relative to his alleged lack of informed consent.
Accordingly, the motion for summary judgment was properly granted.

Writs to the Supreme Court were not taken in Livings. We also note the Livings case has not been cited or referenced in any other case since its release.

Although we agree the facts in Livings and the instant case are “similar,” there are key factual distinctions. In the present case, Plaintiff specifically testified if he |7knew he was going to need a colo-noscopy, he would have demanded that a gastroenterologist (a specialist) perform the procedure. His testimony was as follows:

Q: And, so what I was — my question is: Earlier I asked you if you would have known, or been told about possible perforated colon as a result of the colonoscopy, you testified, “I would not have agreed to colonosco-py”; is that correct?
A: No, sir. I would have went to a gastroenterologist.
Q: Would you-if a gastroenterologist would have told you there still is— even with me, a gastroenterologist, performing the procedure — there still is a risk of perforated colon? A: If you would have^-we would have spoke about it, wouldn’t we?
Q: You and the gastroenterologist?
A: Yes, sir.
Q: Okay. Let’s assume that you did.
A: I would have taken my chances with the specialist, yes, sir.
Q: Let me ask you this: Are you — and you may not know this. I didn’t know this until I looked it up. Are you aware that seven percent of untreated patients with a family history of colon cancer develop cancer by age 21, and 90 percent by age 45?
A: No, sir.
Q: If you had been made aware of that fact, would you have agreed with colonoscopy?
A: By a specialist, yes.

There is no indication in Livings that Dr. Green, who the patient would have used to perform the prostate surgery was any more qualified or specialized in that area of medicine than Dr. LaNasa.

We also find it significant that the procedure which Plaintiff gave his consent for, the hemorrhoidectomy, was successfully completed by Dr. Murdock. Despite Dr. Murdock finding that Plaintiff had an asymptomatic colon, he felt based on Plaintiffs family history of colon cancer that he would benefit from a colonoscopy. Dr. Murdock |sthen made a unilateral decision at that time to perform the procedure. It is undisputed the colonoscopy performed by Dr. Murdock was not necessary, or even related to the hemorrhoidec-tomy or any other condition discovered during the procedure which reasonably warranted immediate medical care. The events which transpired in this case are completely different from the emergency procedure in Livings. In Livings, the patient was experiencing bleeding and clotting in his urine. Dr. LaNasa, who first suspected it was a bladder tumor that was causing the symptoms, discovered that in fact the patient’s medical problems resulted from a growth of prostatic tissue. Dr. LaNasa when faced with a choice to continue with the surgery and remedy the patient’s problem, or to “close him up” knowing a second surgery would be required to stop the patient’s serious ongoing condition reasonably opted to proceed. Dr. LaNasa specifically noted that bladder tissue is contiguous with prostate tissue, and although the tissue grew from the prostate, it protruded into the bladder cavity. On the other hand, the colonoscopy in this case was not essential to remedying Plaintiffs problem with hemorrhoids.

The informed consent doctrine is based on the principle that every adult of sound mind has the right to determine what will be done to his or her own body. LaCaze v. Collier, 434 So.2d 1039 (La.1983). Where circumstances permit, a patient should be told the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved, the prospects of success, the risks of failing to undergo the treatment or procedure, and the risks of any alternative methods of treatment. Hondroulis, 553 So.2d 398. In a case where the plaintiff alleges there has been no consent, the law requires only proof of a material risk that was not disclosed and the occurrence of that risk. LaCaze, 434 So.2d at 1040, n. 1. It is undisputed in this case that perforated bowel is a material risk of a colonoscopy. |9Further, Dr. Breaux testified in his deposition that the informed consent given to Plaintiff did not list perforated bowel as a material risk. We note as well, the law provides a rare or unforeseeable risk of medical treatment need not be disclosed to a patient unless a risk is medically known and of a magnitude that would be material in a reasonable patient’s decision to undergo treatment. Hondroulis, 553 So.2d at 413. Generally, a “risk is material when a reasonable person in what the doctor knows or should know to be the patient’s position[,] would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.” Hondroulis, 553 So.2d at 411-412, citing LaCaze, 434 So.2d at 1045-46. The record establishes this was not a situation where the risk of perforated bowel associated with a colonoscopy was remote. The risk of a perforated bowel is a common, material risk of a colonoscopy.

In Pizzalotto v. Wilson, 437 So.2d 859 (La.1983), the Louisiana Supreme Court established the rule that a physician may not act beyond his patient’s authorization, except when a situation seriously threatens the health or life of the patient. That exception represented the one instance where a patient’s consent would be implied. In Pizzalotto, the plaintiff consented to an exploratory, conservative operation to burn adhesions which had entangled her reproductive organs. Instead the surgeon performed a total hysterectomy. The Supreme Court found the additional procedure improper even though the hysterectomy was reasonably necessary at the time of surgery. Notwithstanding the fact that the plaintiffs condition in Pizzalotto had already rendered -her sterile and that she would have to undergo a hysterectomy within six to eight days in order to avoid danger to her health, the Court nevertheless determined that the performance of a hysterectomy without consent constituted a hobattery.

In the present case, the performance of the colonoscopy cannot be said to have been an emergency procedure. Dr. Mur-dock had already successfully completed the hemorrhoidectomy when he decided to perform the colonoscopy. The reason for the colonoscopy was to reduce the possibility of colon cancer in the future. There was no immediate threat to the health of Plaintiff that required the immediate performance of the colonoscopy. The court in Pizzalotto found even though the patient there would require a hysterectomy within six to eight days in order to avoid danger to her health, it was not an emergency which warranted the performance of a hysterectomy without consent. Dr. Mur-dock’s belief that a colonoscopy would benefit Plaintiff does not, under Pizzalotto, legally justify its performance without the patient’s consent.

Defendants also note a plaintiff in an informed consent case bears the burden Inof proving disclosure of the material risks would have led a reasonable patient in the plaintiffs position to reject the medical procedure or choose a different course of treatment. Fremin v. Continental Ins. Co., 02-1157 (La.App. 3 Cir. 3/5/03), 839 So.2d 1137, writs denied, 03-966, 03-979, 03-981 (La.6/27/03), 847 So.2d 1271, 1272. Defendants argue applying this standard in a light most favorable to Plaintiff, we must conclude that a reasonable person with a family history of colon cancer and a father who was diagnosed with colon cancer would not refuse a colonoscopy even when faced with the known risk that his colon might be perforated. While this eventuality may very well be true, it is only one part of the “choice” inquiry in securing informed consent. In deciding whether to undergo a colonoscopy, Plaintiff was entitled to select a physician he believed possessed greater specialized skills to perform the surgery. We find nothing unreasonable about a patient desiring the best and most competent medical treatment available and exercising complete control over his choice of physician in a non-emergency situation. La. R.S. 9:2794(A)(1) provides that general practitioners are held to the degree of knowledge or skill possessed by other general practitioners in a similar community or locale and under similar circumstances; whereas specialists are held to the degree of care ordinarily practiced within the involved medical specialty. Clearly the law has acknowledged that specialists are in a superior position within their field than that of a general practitioner.

After a thorough examination of the law and jurisprudence, we find a favorable inference can be drawn that the risk of a perforated colon was substantial enough that a reasonable patient in Plaintiffs position would have been likely to attach significance to the risks in deciding not only whether to undergo the procedure, but when and whether to secure the services of a surgeon possessing particular skills and | ^specializing in the area of gas-troenterology to perform the procedure. At the summary judgment stage the burden is upon the Defendants, as the moving party, not upon Plaintiff, to show the patient was adequately informed of the nature and magnitude of the risk so as to be able to make an intelligent choice. There was no emergency. No written consent listing the material risks of a colonoscopy was obtained. There are, at a minimum, genuine issues of fact whether Dr. Mur-dock engaged Plaintiff in a discussion of the risks associated with a colonoscopy or allow an opportunity for Plaintiff to ask questions as required by La.R.S. 40:1299.40(C). To be valid, actual consent requires an understanding as set forth in La.R.S. 40:1299.40(0). Under these circumstances, it cannot be said that Dr. Murdock carried his burden of proof. Plaintiff is entitled to' his day in court.

DECREE

For the above reasons, the judgment below granting the summary judgment is reversed and the case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to defendants-appellees.

REVERSED AND REMANDED.

AMY, J., concurs in the result and assigns reasons.

AMY, J.,

concurring in the result.

IU agree that a reversal of the summary judgment is appropriate. I write separately as I believe that the motion for summary judgment advanced a straightforward question, i.e., whether the plaintiff may proceed with this lack of informed consent case due to his statement that he would have undergone a colonoscopy if informed of the risks, but that he would have had it performed by another physician. On this narrow issue presented, I find the defendants’ submission in support of their motion legally insufficient.

La.R.S. 40:1299.40(E)(2)(a) provides that:

In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

The defendants assert that the plaintiff is precluded from establishing the causation element of his case due to Livings v. LaNasa, 552 So.2d 1281 (La.App. 5 Cir.1989), a case rendered prior to the enactment of La.R.S. 40:1299.40(E)(2)(a) and one distinguished at some length by the majority. I do not distinguish Livings from this case. In fact, one of the deficiencies I find in the motion for summary judgment application is the thin factual background provided by the record. Instead, my ^understanding of the causation element of the plaintiffs burden of proof is at odds with the defendants’ argument regarding the persuasiveness of Livings. The defendants’ argument and the Livings case focus on the plaintiffs choice. However, the causation inquiry involves what a reasonable person would have done.

The Louisiana Supreme Court explained in Lugenbuhl v. Dowling, 96-1575, p. 12 (La.10/10/97), 701 So.2d 447, 454, that:

Causation is established only if adequate disclosure reasonably would be expected to have caused a reasonable person to decline treatment because of the disclosure of the risk or danger that resulted in the injury. Although the patient has the absolute right, for whatever reason, to prevent unauthorized intrusions and treatments, he or she can only recover damages for those intrusions in which consent would have been reasonably withheld if the patient had been adequately informed.

(Emphasis added.) See also Jackson v. State, 05-2021 (La.9/29/06), 938 So.2d 688. Thus, it seems to me that the choice the plaintiff would have made if faced with the material risks of a colonoscopy does not, alone and as a matter of law, preclude the recovery for lack of informed consent. Rather, the inquiry is on what a reasonable person would have done.

The defendants, in their brief to this court, reference facts and figures regarding the wisdom of a patient having a colo-noscopy performed. However, the evidence in this regard was submitted in support of the defendants’ first motion for summary judgment which was denied by the trial court. The defendants have not answered this appeal, placing review of this first motion for summary judgment at issue. Moreover, even if considered, I do not see that this evidence on this point is sufficient to sustain the initial burden of proof under La.Code Civ.P. art. 966(C)(2) of “pointing] 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.”

I further refrain from joining the majority’s discussion regarding the | ^reasonableness of the plaintiffs preference of a gastroenterologist instead of a general surgeon. This type of inquiry would necessarily require some evidence that either specialization had a higher level of expertise for this procedure. The record before us, however, does not include evidence as to the scope of the expertise of either type of physician.

For these reasons, I concur in the result.

      . Subsequent to the decision in Pizzalotto, there was an amendment to LSA-R.S. 40:1299.40 in 1990, which melded together the concepts of battery and negligent failure to obtain informed consent. Thus, the sole cause of action provided by the legislature for both allegations thereafter sounded only in negligence, signifying a recognition of the absence of intentional conduct in both factual situations. See Lugenbuhl v. Dowling, 96-1575, p. 9 (La. 10/10/97), 701 So.2d 447, 453 ("We therefore reject battery-based liability in lack of informed consent cases (which include no-consent cases) in favor of liability based on breach of the doctor's duty to provide the patient with material information concerning the medical procedure.” (Emphasis supplied.) ) The 1990 amendment added Section E to the statute which provides in pertinent part:
      In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent. (Emphasis added).