author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Charles BILQUIST v. CUSTOM CRAFT HOMES, INC.
    No. 2012-CA-0469.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 7, 2012.

      William R. Mustian, III, Stanga & Mus-tian, APLC, Metairie, LA, for PlaintiffiAp-pellee, Charles Bilquist.
    Nathan L. Schrantz, Daniel, Coker, Horton & Bell, P.A., Gulfport, MS, for Defendant/Appellant, Custom Craft Homes, Inc.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge DANIEL L. DYSART).
   DENNIS R. BAGNERIS, SR., Judge.

| ,This is a workers’ compensation case. The employer/defendant, Custom Craft Homes, Inc. (Custom Craft), appeals the judgment in favor of the claimant/employee, Charles Bilquist. The judgment awards Mr. Bilquist temporary total disability benefits, medical benefits, penalties, and attorney fees.

For the reasons that follow, this Court finds that the award of disability benefits, medical benefits, and attorney fees was proper. We agree that although the workers’ compensation judge (WCJ) properly assessed Custom Craft with penalties, the penalties awarded exceeded the statutory limit allowed by La. R.S. 23:1201(F). Therefore, the judgment is amended to assess the statutory maximum penalties. In all other respects, we affirm the judgment as amended.

FACTS AND PROCEDURAL HISTORY

Mr. Bilquist was hired by Gary Arnoult to do carpentry work in connection with framing of a house for construction in the Rigolets Estates subdivision in St. Tammany Parish, Louisiana. Custom Craft was the general contractor. Custom Craft retained Owen Construction Company to actually frame the house. Owen ^Construction then engaged Gary Arnoult, the man who directly hired Mr. Bilquist, to perform some of the work.

On the afternoon of August 4, 2009, Mr. Bilquist and another employee, Chris Beals, were standing on a scaffold. While they were maneuvering a piece of plywood, the scaffold collapsed. Mr. Bilquist and the co-worker fell approximately fifteen to thirty feet. Mr. Bilquist complained of injuries to his head, spine, pelvis, and heel. He was taken to Slidell Memorial Hospital where test results revealed a pelvic fracture. Later, he was transferred to Louisiana Medical Center and Heart Hospital. The hospital’s discharge summary found he had a sacral fracture, a L3 compression fracture, back pain, and degenerative disc disease. He was discharged home with a recommendation for physical therapy, occupational therapy, home health care with crutches, and a wheelchair.

Mr. Bilquist then began treatment with Dr. Joseph Mogan of Omni Healthcare, L.L.C., from August 24, 2009 until April 11, 2011. Dr. Mogan, board certified in physical medicine and rehabilitation, prescribed various pain medications. Mr. Bil-quist described his pain as “hurts as much as you can imagine” during his treatment. Dr. Mogan referred Mr. Bilquist to an orthopedic surgeon and pain management on the last visit of April 11, 2011.

Mr. Bilquist also treated with Dr. James Butler, associated with Southern Spine Care, shortly after the accident. Dr. Butler saw Mr. Bilquist on September 30, 2009, November 20, 2009, and June 15, 2010. He referred Mr. Bilquist to 1^Southern Surgical Hospital for imaging tests involving the spine and the sacrum. Dr. Butler noted that he remained on pain medication, ambulated with a cane, and continued with back and right leg pain. He stated that Mr. Bilquist was not capable of returning to work at that time. Dr. Butler advised that Mr. Bilquist would have a permanent partial disability and speculated that he would reach maximum medical recovery within two months. Dr. Butler last treated Mr. Bilquist on June 15, 2010 for sexual dysfunction issues. He recommended that Mr. Bilquist see an urologist and opined that his sexual dysfunction issues could be related to his lumbar spine or sacral injuries. The report did not address Mr. Bilquist’s ability to return to work.

At some point during his treatment, Mr. Bilquist retained an attorney. That attorney contacted Custom Craft. Custom Craft retained Gary Kern, of Risksaver, to investigate the claim on its behalf. Mr. Kern obtained signed medical authorizations and some medical records. He received settlement authority; however, the matter did not resolve. Thereafter, Mr. Bilquist’s attorney filed a 1008 dispute form with the Office of Workers’ Compensation Administration (OWCA) on January 15, 2010, seeking workers’ compensation benefits against Custom Craft and Owen Construction.

Custom Craft’s answer denied that Mr. Bilquist was its employee. It argued that Custom Craft had no obligation to pay workers’ compensation benefits ^because Mr. Bilquist was an employee of Arnoult and/or Owen Construction. It relied on a certificate of insurance provided by Ar-noult. The insurance certificate provided that Owen Construction had workers’ compensation insurance for its employees, and moreover, listed Custom Craft as an additional insured.

On January 26, 2011, Mr. Bilquist filed a Motion For Summary Judgment to have Custom Craft declared his statutory employer. Custom Craft entered a stipulation on April 4, 2011, that Mr. Bilquist was its statutory employee.

Also on April 4, 2011, Custom Craft amended its answer to plead the La. R.S. 23:1081 intoxication defense. It based this defense on Mr. Bilquist’s December 2010 deposition testimony wherein he stated that Gary Arnoult had provided marijuana on the job site and that he [Bilquist] had taken two puffs of marijuana on the accident date.

This matter went to trial on April 20, 2011 against Custom Craft. Mr. Bil-quist’s presentation of his case included calling three witnesses, Gary Kern, Gary Arnoult, and himself.

Mr. Kern testified that he was assigned to investigate the claim by parties affiliated with Custom Craft. He admitted that he talked with an attorney who previously represented Mr. Bilquist. He obtained a medical authorization form and recalled receiving records from Slidell Memorial. He said he got authority to make La settlement offer; however, before any decision was made, the 1008 dispute form was filed. Mr. Kern concluded during his investigation that Custom Craft was Mr. Bilquist’s statutory employer. He also believed that Custom Craft authorized the payment of $1,000 for medical management expenses.

Gary Arnoult confirmed that he hired Mr. Bilquist to be a helper. He said that he was present when the accident happened. Mr. Arnoult admitted that he built the scaffold. He claimed that the scaffold did not collapse, but rather, that it was torn from the wall. He acknowledged that OSHA investigated the accident, that he was fined, and that the scaffold did not have guardrails.

On examination by defense counsel, Mr. Arnoult denied that he provided marijuana to Mr. Bilquist on the accident date. He said that he spoke to Mr. Bilquist earlier in the day as to why he was not doing his job correctly. Mr. Bilquist allegedly responded that he was upset because he had learned the day before that he had cancer. Mr. Arnoult claimed that the accident happened because Mr. Bilquist disregarded his instruction not to pick up a piece of plywood that weighed about 100 pounds by himself. When he picked up the plywood, Mr. Arnoult surmised that either Mr. Bil-quist stepped off the scaffold and tore everything down or he let go of it.

On re-examination by Mr. Bilquist’s attorney, Mr. Arnoult acknowledged that he did not actually see the accident. After initially denying any familiarity with marijuana, he also admitted that he had been convicted of possession of marijuana. Mr. Arnoult verified that he never supplied Mr. Bilquist with a written Rcopy of his company’s substance abuse policy or that he was aware of any drug test results. He added that he had no idea what drugs, if any, that Mr. Bilquist took on the accident date.

Mr. Arnoult confirmed that he lacked insurance for this job. He said that because he worked for Owen Construction, it was Owen Construction’s responsibility to supply the insurance. However, he admitted that no certificate of insurance was issued to Owen Construction for this job.

Mr. Bilquist testified that he had a ninth grade education. He taught himself carpentry and had been doing it the last twenty-three years. He said that he was hired by Mr. Arnoult after Mr. Arnoult saw some custom work he had done on a boat.

He worked on the job for a few days before the accident. During this time, he met Lyle Wille, a representative of Custom Craft, and discussed his work. He also said he left work early on the day before the accident for a pre-arranged co-lonoscopy examination. Mr. Arnoult approved the appointment. He said that he was upset that day because he had learned his father had cancer.

On the day of the accident, Mr. Bilquist testified that he was on a scaffold with another worker, Chris Beals. They were attempting to place plywood into a wall. Mr. Bilquist verified that Mr. Arnoult advised him not to lift the plywood by himself. He followed Mr. Arnoult’s advice because the plywood weighed too much for him to lift by himself and then, to try to put it twenty-six feet into the air. Mr. Bilquist stated that when Chris Beals and he picked up the piece of plywood to 17put in the wall, the piece did not fit. The plywood came out and the next thing he knew, the scaffold was collapsing. He fell approximately twenty-five feet, injuring his head, back, pelvis, and feet. He noticed that the scaffold had no handrails or safety harnesses and in general, there was no permanent structure to the scaffold. He said he had nothing to do with the building of the scaffold.

With reference to drug use, he averred that Mr. Arnoult encouraged drug use before the start of the work day, prior to Mr. Wille’s arrival, and also during breaks. He said he took two hits off of a marijuana cigarette that was provided by Mr. Arnoult on the day of the accident. This happened around 7:30 a.m. However, he claimed that the marijuana did not affect his job performance. He pointed out that the accident did not happen until nearly 3:80 p.m.

Mr. Bilquist said he was in significant pain from the fall. He had fractures to his pelvis, spine, and ankle. He verified that he went to Slidell Memorial and then was transferred to Louisiana Heart Hospital. He was in the hospital for only two days because no one would pay. He said he underwent cat scans, MRIs, and ultrasound. He advised that he discontinued treatment with Dr. Butler because the insurance company would not pay. He continued to see Dr. Mogan because his father paid for the treatment.

At the time of trial, he was still on Loricet 10, Soma 350 milligrams, and Rox-ycodone. He alleged that he gets light headed when he stands and has trouble standing and sitting for any long periods of time. He complained of pain and numbness in his toes. He testified that the major things that bother him from this | ^accident include his lower back and his “cervic” area. He also said that his “private” does not work. He testified that he did not believe he could return to work as a carpenter because of the dizziness he experiences and the bending carpentry work requires. He speculated that he might be able to drive a taxi cab for a few hours a day or drive a dump truck. However, he added that he did not think he could do any part-time work at this point and that he needed to be fixed.

On cross-examination, Mr. Bilquist stated that he was in a wheelchair for about four months and in a walker for six months. He admitted that he smoked marijuana on the job on the morning of the accident and that he smoked on his own about a week before the accident. He said that he did not personally make a claim against Owen Construction or Custom Craft for workers’ compensation benefits. However, he thought that his first lawyer made a claim for benefits.

After Mr. Bilquist rested his case, Custom Craft moved for an involuntary dismissal. Its counsel alleged that Mr. Bil-quist was not entitled to compensation pursuant to LSA R.S. 23:1081 because, by his own admission, he was intoxicated. Secondly, Custom Craft argued that Mr. Bilquist’s claims for any penalty and attorney fees should be dismissed because he did not produce evidence that he made a demand for indemnity or medical benefits to Custom Craft. The WCJ denied the motion. The court found that the presumption of intoxication was a rebuttable presumption. Additionally, the court accepted Mr. Bilquist’s argument that at a minimum, the form 1008 was a demand for payment.

|flThe trial continued. Custom Craft called Lyle Wille as its first witness. Mr. Wille stated that he was superintendent for construction for Custom Craft. He met Mr. Bilquist prior to the accident. Mr. Wille advised that he was on the site on the day of Mr. Bilquist’s accident. He did not see the accident, but arrived on the scene shortly thereafter. He said that Mr. Bilquist seemed to be in pain. Mr. Wille remembered that Mr. Bilquist said that his pelvis hurt. He recommended that Mr. Bilquist go to the hospital. Mr. Wille went to Slidell Memorial; however, Mr. Bilquist had not arrived when he got there. He left after about forty-five minutes and said he never saw Mr. Bilquist after the accident date. Mr. Wille never spoke to Chris Beals, the other worker involved in the accident.

Mr. Beals said that shortly before the accident, Mr. Bilquist and he were nailing sheets of plywood into the exterior walls. He claimed that Mr. Bilquist had acted “funny” earlier in the day, but he thought that was because Mr. Bilquist had revealed to Mr. Arnoult that he had cancer. However, at the time that Mr. Bilquist and he were on the scaffold, he said that Mr. Bilquist was doing “fine” until he handled the last sheet of plywood. Mr. Beals asserted that Mr. Bilquist did not wait for him to grab the plywood with him. He alleged that Mr. Bilquist dropped the plywood, which in turn, caused the scaffold to fall. Mr. Beals said he sprained his ankle pretty badly in the fall.

Mr. Beals also claimed that roughly six months later, he went to a waterpark with Mr. Bilquist and his daughter. He testified that Mr. Bilquist did not seem to have any restrictions and that he slid down all the slides.

110When questioned by Mr. Bilquist’s counsel, he said that he did not exactly see what Mr. Bilquist was doing, however, he maintained that he saw Mr. Bilquist drop the plywood. He admitted that he was involved in the building of the scaffolding. He reiterated that Mr. Bilquist was not behaving unusually just before the fall and that everything was fine.

On re-direct, Mr. Bilquist testified that he did not drop the piece of plywood. He stressed that when Chris Beals and he went to put the plywood in place, the scaffold collapsed. With reference to the water park, he said the only thing that he did was sit in a chair and perhaps, make two laps with an inner tube through the lazy river. He strenuously denied riding on any slides.

Before the parties submitted the case, they agreed that Mr. Bilquist’s average weekly wage amounted to $500.00. This wage rate resulted in an indemnity rate of $333.33.

At the conclusion of the trial, the WCJ rendered judgment in Mr. Bilquist’s favor. In his reasons for judgment, the WCJ rejected Custom’s Craft’s intoxication defense. Instead, the WCJ determined that Mr. Bilquist had successfully rebutted the presumption of intoxication. The WCJ credited Mr. Bilquist’s open admission that he had taken two puffs of marijuana. It accepted his testimony that the marijuana did not affect him and cited his co-worker’s testimony that Mr. Bilquist was doing just fine before the accident. The WCJ found Mr. Bilquist credible and believed his account of the accident.

InOn the other hand, the WCJ found that Gary Arnoult was not a credible witness. In discussing Mr. Arnoult’s credibility, the WCJ noted that Gary Arnoult erected the scaffold that OSHA found to be defective and that Arnoult gave Custom Craft a phony certificate of insurance. The WCJ also cited his prior conviction for possession of marijuana. The court questioned whether or- not Mr. Arnoult had a written drug policy and noted that although Mr. Arnoult arrived at the hospital before Mr. Bilquist, he not only failed to request a drug test, but also did not accept responsibility for Mr. Bilquist’s treatment.

The WCJ’s review of the medical records determined that Mr. Bilquist had never gotten the medical treatment as requested by his medical providers. Based on the above factors, the WCJ ordered the following:

IT IS ORDERED, ADJUDGED AND DECREED that Charles Bilquist was injured in a work-related accident on August 4, 2009; that at the time he was a statutory employee of Custom Craft Homes, Inc. and that his rate of pay was $500 per week for a forty hour week, yielding a workers’ compensation indemnity rate of $333.33; and

IT IS FURTHER ORDERED, AND DECREED that Claimant was and is temporarily totally disabled since August 4, 2009 and continuing until found to be at Maximum Medical Improvement by a competent provider of his choosing; and

IT IS FURTHER ORDERED, AND DECREED that all of his outstanding medical charges are to be paid, and any provable out of pocket medical expenses related to the accident of August 4, 2009 are to be reimbursed to him with interest; and

IT IS FURTHER ORDERED, AND DECREED that Bilquist is to undergo a Functional Capacity Examination to determine exactly what his physical capabilities are; and

IT IS FURTHER ORDERED, AND DECREED that Bilquist is to be provided with vocational rehabilitation services to include work-hardening; and

IT FURTHER ORDERED, AND DECREED that Custom Craft Homes, Inc. has failed to reasonably controvert this claim and consequently shall pay tenjthou-sand12 dollars ($10,000.00) in penalties to Claimant and fifteen-thousand dollars ($15,000.00) in attorney fee [sic] to Claimant’s counsel for the successful prosecution of this claim; and all of the above and delineated sums to bear legal interest from the date of the execution of this judgment until paid.

From this judgment, Custom Craft timely lodged this appeal

STANDARD OF REVIEW

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to findings of fact by the WCJ is the manifest error-clearly wrong standard. Dean v. Southmark Const., 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. In applying the manifest error standard of review to factual findings in a workers’ compensation case, an appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable in light of the entire record. Hatfield v. Amethyst Const., Inc., 43,588, p. 5 (La.App. 2 Cir. 12/3/08), 999 So.2d 133, 139. “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 [ (sic) ]; 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). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987).

|1sDISCUSSION

Custom Craft raises four assignments of error. They include: 1) the trial court erred in concluding that Charles Bilquist was entitled to temporary total disability benefits in the face of Bilquist’s testimony that he could work; 2) the trial court erred in finding there was no evidence of intoxication despite Bilquist’s testimony that he used marijuana the week of and the day of his accident; 3) the trial court erred by awarding penalties at all and penalties in excess of the statutory limit; and 4) the trial erred in finding Charles Bilquist was entitled to medical care when Bilquist failed to meet his burden of proof that ongoing care was reasonable and necessary. We first consider Custom Craft’s claims that the trial court erred in awarding temporary total disability benefits and medical benefits.

Custom Craft argues that Mr. Bil-quist is not entitled to temporary total benefits or any medical benefits because he did not prove by clear and convincing evidence that he is physically unable to perform any type of employment or that he required ongoing medical treatment. To support this argument, Custom Craft relies on testimony from Mr. Bilquist where he said he might be able to work as a cab driver or a dump truck driver. It also cites that portion of Dr. Butler’s report of November 2009 that said that Mr. Bilquist should reach maximum medical recovery within two months. However, we find these assignments of error lack merit because the evidence adduced at trial offered reasonable support for the WCJ’s finding of temporary total disability and the court’s award of medical benefits.

I ^Custom Craft is correct that a workers’ compensation claimant seeking temporary total disability benefits bears the burden of proving by clear and convincing evidence his inability to engage in any type of employment. Reinhardt v. City of New Orleans (NOPD), 2009-1116, p. 26 (La.App. 4 Cir. 1/13/10), 30 So.3d 229, 244. This Court found in Jackson v. Sysco Food Services, 2005-1304, pp. 1-2 (La.App. 4 Cir. 6/7/06), 934 So.2d 191, 193, that in determining whether a claimant has met his burden of proving by clear and convincing evidence his entitlement to TTD benefits, the hearing officer must weigh both medical and lay evidence. Additionally, the claimant must introduce objective medical evidence to sustain his claim by clear and convincing evidence. Id.

In the present matter, the WCJ clearly accepted Mr. Bilquist’s testimony that the injuries he sustained in the accident kept him in such pain that he was unable to return to any form of work. Although Custom Craft points to Mr. Bilquist’s testimony that he might be able to do part-time work, such as a cab driver or a dump truck driver, Mr. Bilquist qualified those remarks. He clarified that he was unable to do any work at present until he got “fixed.” Mr. Bilquist added that he had not been able to do any work since the accident.

The medical records also supported Mr. Bilquist’s claim that he could not return to work. Diagnostic records showed that Mr. Bilquist sustained significant injuries — a sacral fracture, fracture of the L-3 vertebra, and right foot and heel — injuries that resulted from his work-related accident. He was treated by an orthopedist, Dr. Butler, for these injuries. When Dr. Butler saw him on November |1S20, 2009, he expected Mr. Bilquist to have a permanent partial disability and anticipated that Mr. Bilquist would reach maximum medical improvement within two months. Custom Craft argues that this report means that Mr. Bilquist would have no longer been temporarily totally disabled as of February 2010. However, this interpretation ignores the fact that when Mr. Bilquist was treated on November 20, 2009, Dr. Butler still had Mr. Bilquist on a no-work status. Moreover, it disregards that Dr. Butler never discharged or fully evaluated Mr. Bilquist’s medical or work status because Custom Craft refused to authorize any medical treatment.

Similarly, Dr. Mogan never discharged Mr. Bilquist to return to work. His records indicated that Mr. Bilquist constantly complained of significant pain. In response, Dr. Mogan prescribed pain medication. Mr. Bilquist’s last visit with Dr. Mogan of April 11, 2011, showed that Dr. Mogan had discharged him to an orthopedist and had referred him to pain management.

La. R.S. 23:1203 outlines the employer’s obligation to furnish all necessary medical expenses related to a work injury and the workers’ compensation claimant’s right to recover those expenses reasonably necessary for the treatment of a medical condition caused by a work-related injury. See also Hatfield v. Amethyst, supra. In asking this Court to find that Mr. Bilquist did not prove his entitlement to temporary total disability benefits or medical care, Custom Craft seeks to be rewarded for abdicating its statutory obligation to furnish necessary medical expenses. We decline to do so.

116Based on our review of the record, Mr. Bilquist presented lay and medical evidence to meet his burden of proof to show he is temporarily totally disabled from any employment and his need for on-going medical care. In contrast, Custom Craft introduced no evidence to contradict Mr. Bilquist’s disability claims. Hence, the WCJ did not err in awarding Mr. Bilquist TTD benefits and in ordering Custom Craft to furnish medical care, including a functional capacity examination and vocational rehabilitation, as mandated by La. R.S. 23:1203.

We next consider Custom Craft’s claim that the WCJ erred in not accepting its intoxication defense. Custom Craft properly notes that Mr. Bilquist’s admission that he smoked marijuana on the accident date created a presumption of intoxication that would preclude his entitlement to compensation benefits. See La. R.S. 23:1081(5). Custom Craft complains that the WCJ rejected this defense solely because there was no drug test to prove Mr. Bilquist’s intoxication. We agree with Custom Craft that it would have been an error of law in the event the WCJ had discounted the intoxication defense on that basis. However, that was not the reason the defense was rejected. Instead, the WCJ found that Mr. Bilquist rebutted the presumption of intoxication.

As previously referenced herein, the WCJ accredited the testimony of Mr. Bil-quist and discredited the testimony of Mr. Arnoult in making the court’s findings as to how the accident happened and whether or not Mr. Bilquist was intoxicated. The WCJ accepted Mr. Bilquist’s account that his use of marijuana did not affect him and did not cause the accident. In support of this accreditation, |17the WCJ referenced the testimony of one of Custom Craft’s witnesses, Chris Beals, who testified that Mr. Bilquist was working just fine before the accident happened. Although Mr. Ar-noult testified that he believed Mr. Bilquist was intoxicated, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Russell v. Orleans Parish School Board, 2005-1358, p. 3 (La.App. 4 Cir. 5/17/06), 933 So.2d 193, 197.

The WCJ made reasonable findings that are supported by the record. Therefore, we cannot say that the WCJ was manifestly erroneous or clearly wrong in deciding that Mr. Bilquist rebutted the presumption of intoxication. See Stenson v. Pat’s of Henderson Seafood, 2011-1148 (La.App. 3 Cir. 2/1/12), 84 So.3d 661.

Custom Craft’s final assignment of error contends that the WCJ erred in awarding any penalties at all, and then, in making an award in excess of the statutory limits. An employer’s failure to provide payment of compensation or medical benefits owed shall result in the assessment of a penalty and reasonable attorney fees, unless the employer has reasonably controverted the claim. Brown v. Texas-LA Cartage, Inc., 1998-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890. In general, in order to reasonably controvert a claim, the defendant must have some | i8valid reason or evidence upon which to base his denial of benefits. Id. Custom Craft urges that it had valid reasons to controvert Mr. Bilquist’s claim.

It first contends that the claim was reasonably controverted because Mr. Bilquist was a direct employee of Gary Arnoult, who was a framing contractor for Owen Construction. Therefore, Custom Craft argues that Arnoult and/or Owen Construction were responsible for Mr. Bil-quist’s claim. Custom Craft also alleges that the claim was reasonably controverted when it discovered that Mr. Bilquist smoked marijuana on the accident date, which provided it with the affirmative defense of intoxication. We find neither of these arguments persuasive.

By its own admission, Custom Craft was Mr. Bilquist’s statutory employer. Its investigator, Gary Kern, knew during his investigation that Mr. Bilquist was Custom Craft’s statutory employee. At one point, Kern was given settlement authority. Before then, Custom Craft’s supervisor, Mr. Wille, knew Mr. Bilquist worked on its site. He saw Mr. Bilquist right after the accident, observed his injuries, and even went to the hospital. Although Custom Craft failed to stipulate that Mr. Bilquist was its employee until shortly before trial, it had no reason to ever contest its statutory employer status. Therefore, its workers’ compensation obligations as the statutory employer attached from the date of Mr. Bilquist’s accident.

La. R.S. 23:1061(A)(1) allows in part that the statutory employer shall be liable to pay any employee in the execution of the work, any compensation which 113he would have been liable to pay if the employee had been immediately employed by him. Thus, the law imposes upon Custom Craft the same obligation to pay Mr. Bil-quist any compensation owed as if he had been directly hired by Custom Craft. Custom Craft cannot escape its statutory obligation to pay compensation benefits by shifting that responsibility to the direct employer, whether it was Mr. Arnoult or Owen Construction. Our established jurisprudence has long held that under La. R.S. 23:1061, a dispute between a statutory employer and a direct employer with regard to which one owes compensation benefits does not constitute a justifiable basis for withholding benefits from an injured worker. Smith v. Kelly Labor Service, 239 So.2d 685 (La.App. 4 Cir.1970).

Alternatively, Custom Craft attempts to justify its failure to pay benefits based on its intoxication defense. This argument may have had some merit in the event Custom Craft had initially accepted its obligation to pay compensation benefits and then controverted Mr. Bilquist’s right to compensation after it learned he had smoked marijuana on the job. As it were, Custom Craft did not even discover this defense until nearly a year after it had already formally denied compensation benefits on the grounds that Mr. Bilquist was not its employee, and nearly sixteen months after the accident itself. By the time Custom Craft raised the intoxication defense, the maximum allowable penalties had already accrued.

Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers’ compensation benefits are penal in nature and must be strictly construed. Hatfield, 43,588 at pp. 12-13, 999 So.2d at p. 142. However, 120the WCJ’s decision whether to assess statutory penalties and attorney fees will not be disturbed absent an abuse of discretion. Id. In the present matter, Custom Craft knew it was Mr. Bilquist’s statutory employer from the date of the accident. It immediately knew he sustained a work-related accident that prevented him from returning to work. Yet, Custom Craft steadfastly refused to acknowledge that Mr. Bilquist was its employee and to pay any compensation benefits. Accordingly, the WCJ did not err in assessing penalties as Custom Craft did not reasonably controvert Mr. Bilquist’s workers’ compensation claim.

Where the trial court did err, however, is in awarding Mr. Bilquist $10,000.00 in penalties. Mr. Bilquist’s attorney concedes that the maximum penalty allowed under the La. R.S. 23:1201(F) is $8,000.00. Therefore, we amend the judgment to set aside the $10,000.00 penalty and award $8,000.00 in penalties, the maximum allowed by law.

In conjunction with the statutory penalties dispute, Custom Craft maintains that the $15,000.00 awarded in attorney fees was excessive and Mr. Bilquist requests that this Court increase the attorney fee award by $2500.00 to reflect the work done on this appeal by his attorney.

The factors to be considered in determining the amount of attorney fees include the degree of skill and ability executed by the attorney, the amount of the claim, the amount received by the employee, and the time devoted to the case. Hatfield, supra, citing Lewis v. Chateau D'Arbonne Nurse Care Center, 38,394, p. 12 (La.App. 2 Cir. 4/7/04), 870 So.2d 515, 523. Here, claimant’s counsel had to 1 afile a motion for summary judgment to even get Custom Craft to stipulate that it was the statutory employer. The attorney successfully rebutted the intoxication defense; and obtained a judgment to pay on-going temporary total disability benefits and medical benefits. Based on these factors, the WCJ award of $15,000.00 in attorney fees was appropriate.

Mr. Bilquist’s appellate brief represents that he filed an answer to Custom Craft’s appeal wherein he requested an additional attorney fee for the work required by the present appeal. However, our review of the record does not show that an answer was filed. It is well settled that failure to file an answer pursuant to La.Code Civ. P. art. 2133 precludes the appellate court from considering an award of additional fees to compensate counsel for work done on appeal. See Coleman v. Ascension Enterprise, Inc., 2003-1425, p. 6 (La.App. 3 Cir. 4/14/04), 870 So.2d 1159, 1163. Accordingly, this Court cannot act on Mr. Bilquist’s demand for an additional attorney fee because he did not properly request the additional fee by filing an answer to Custom Craft’s appeal.

For the above reasons, the judgment is amended to reduce the penalties to a maximum statutory penalty of $8,000.00. In all other respects, the judgment of the WCJ is affirmed.

AMENDED AND AFFIRMED AS AMENDED

      . Mr. Bilquist went to Omni and Dr. Mogan approximately twenty-six times during this period.

      . Dr. Butler's clinic notes indicate that Mr. Bilquist was referred to him by his Workman’s Compensation Carrier. Dr. Butler sent copies of his medical records to LA Construction Industry Fund, 1130 W. Causeway Approach, Mandeville, LA 70471 to the attention of Gina Wyble and Ramsey Horn. He referenced claim no. 20090010033571. Dr. Butler also sent a copy of his notes from the June 15, 2010 office visit to American Managed Care, Metairie, La. 70011 to the attention of John Kocke. At trial, Custom Craft stipulated that it was self-insured through the Louisiana Construction and Industry Fund.

      . The certificate of insurance was false. Neither Owen nor Arnoult had workers compensation insurance.

      . La. R.S. 23:1081(l)(b) provides in part that no compensation shall be allowed for any injury caused by the injured employee’s intoxication at the time of injury unless the employer procured the intoxicating beverage or substance and encouraged its use during the employee's work hours. Additionally, La. R.S. 23:1081(5) states: "(5) If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, II, IV, and V, it shall be presumed that the employee was intoxicated.”

      .On April 18, 2011, Mr. Bilquist filed a Motion to Dismiss Without Prejudice of Owen Construction.

      . La. R.S. 23:1201(F) provides:
      Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:

      . La. R.S. 23:1061(A)(2) provides: A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate employer.


source: Caselaw Access Project

author: ROSEMARY LEDET, Judge.

license: Public Domain

text:
    Terri H. JOSEPH v. Gregg WILLIAMS, DPM and PACO Assurance Company, Inc.
    No. 2012-CA-0675.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2012.

      Byron J. Casey, III, Metairie, LA, for Plaintiff/Appellant.
    Michael W. Adley, Judice & Adley, Lafayette, LA, for Defendant/Appellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

11 This is a podiatry malpractice case. The principal claim asserted in this case by the plaintiff, Terri Joseph Jackson (“Ms. Jackson”), is the lack of informed consent. From a judgment in favor of the defendants, Gregg Williams, DPM (“Dr. Williams”), and his insurer, PACO Assurance Company, Inc., Ms. Jackson appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 28, 2004, Ms. Jackson, then forty-one years old, first presented to Dr. Williams, a podiatrist. According to Ms. Jackson, she went to Dr. Williams because she had a corn on her right second toe that she wanted treated for cosmetic reasons. According to Dr. Williams, Ms. Jackson complained of feet and toe pain and had no corns. He contemporaneously documented her initial visit in the chart as follows:

“A 41 y.o. female was seen this date at the office for full evaluation of pain in the feet and all the toes. The patient stated that her feet have pain in the front as usual. She is having a great deal of difficulty with pain at times. The patient state[s] that she has some hurting upon palpating of that area of the feet at all times.”

| aDr. Williams’ diagnosis was heel spurs bilaterally and hammer toe of toes two to five bilaterally. He also noted “[sjchedule for surgery as per patient.”

On June 15, 2004, Ms. Jackson returned to see Dr. Joseph. On this second visit, Dr. Williams again documented in the chart that she reported painful hammer toes. He further documented her desire to have surgery and her inability to do so because her new insurer would deny coverage. Dr. Joseph noted in the chart that Ms. Jackson would be notified when her insurer approved the surgery. His plan of care included the following conservative measures: wider shoes and Spenco inserts.

On July 20, 2004, Ms. Jackson returned for a third visit. According to the chart, Ms. Jackson told Dr. Williams that “she would like to have her toes and her heels surgically corrected at this time,” that “most of the pain is there at times,” that “at times, she has a difficult time in walking,” and that “none of the conservative treatment renders any resolution.” On this visit, Dr. Williams documented in the chart that he covered the following items with Ms. Jackson:

1. CBC/Diff, Chem-7, PT/PTT
2. Risks vs. Benefits
3. Surgical consent
4. Pain Medication
5. Discuss 08/10/2004 as surgery date

On August 10, 2004, Dr. Williams performed the surgery on Ms. Jackson at Methodist Hospital in New Orleans. According to the operative report, the surgery was as follows:

1. Arthroplasty of the second, third, fourth, fifth PIPJ.
2. Arthroplasty of the second DIPJ, bilateral.
3. Hemiphalangectomy of the middle phalanx of the fifth digit, bilateral feet.
| ,4. Excision/resection of posterior heel spurs, bilateral.

Before the surgery, Ms. Jackson signed two consent forms: (1) the Methodist Hospital consent form for the surgery, which was entitled: “Patient Consent to Medical Treatment or Surgical Procedure and Acknowledgment of Receipt of Medical Information” (the “Methodist Consent Form”); and (2) an anesthesiologist consent form. Ms. Jackson signed the Methodist Consent Form on both July 20, 2004, at her third office visit with Dr. Williams, and on August 10, 2004, at the hospital before the surgery.

On multiple occasions following the surgery, Ms. Jackson was seen by Dr. Williams for post-operative treatment. According to Ms. Jackson’s medical records, her primary post-operative complaint was with the heels of her feet. Indeed, the chart entry dated January 12, 2005, reads: “[p]atient states that her toes are doing fine.” Although a subsequent surgery to correct the problem -with her heels was scheduled for January 20, 2005, Ms. Jackson declined to have that procedure. Following the January 12, 2005 visit, Ms. Jackson never returned to see Dr. Williams. According to Ms. Jackson, she experienced the following post-operative problems: her toes were scarred and disfigured, her heels were protruding and full of fluid, she had trouble going up and down stairs, she was unable to walk the same, and she was unable to bend her toes. Unhappy with the results of the surgery, Ms. Jackson commenced this medical malpractice suit.

On July 28, 2005, Ms. Jackson filed a complaint against Dr. Williams with the Division of Administration; and a medical review panel (“MRP”) was |4convened to review the matter. On October 17, 2006, the MRP issued its decision. The MRP found that there was a material issue of fact, not requiring expert opinion, bearing on liability for a court to consider as to whether there was a proper informed consent. As to all other issues (except for informed consent) the MRP found the evidence did not support a conclusion that Dr. Williams failed to meet the applicable standard of care. In this regards, the MRP found that the operative procedure was appropriate and that the pre- and postoperative treatment was appropriate.

On November 28, 2006, Ms. Jackson filed this suit against Dr. Williams and his insurer. In this suit, she alleged, among other things, the following:

• improper diagnosis — recommending surgery to correct hammer toes when the condition did not exist;
• failure to offer non-surgical alternatives — debridement or shaving of the corns, home use of pumice stone, padding of the corn, shoe modification, medication to soften the corn, or other alternatives; and
• failure to provide informed consent— failure to inform of any non-surgical alternatives, failure to inform as to the actual surgical procedure he was going to perform, and failure to disclose any risks of the surgical procedure.

In February 2012, a two-day jury trial was held in this matter. At trial, the following five witnesses testified: the plaintiff, Ms. Jackson; the defendant, Dr. Williams; two of the three podiatrists who were members of the MRP, Dr. Chantal Lorio and Dr. Michael Adley; and the preoperative care nurse, Ms. Spears.

Both Dr. Lorio and Dr. Adley reaffirmed their opinion, expressed in the MRP opinion, that the pre-operative treatment, operative treatment, and post-operative treatment was reasonable, appropriate, and met the standard of care. As to the MRP’s finding that there was a material issue of fact regarding informed | ^consent, Dr. Adley explained that the reason for this finding was because “Dr. Williams mentioned in his notes that he had discussed the outcome of the surgery and certain risks with Ms. Jackson preopera-tively on several occasions. Ms. Jackson mentioned that he did not discuss it with her. It was basically Dr. Williams’ versus Ms. Jackson’s word.” Similarly, Dr. Lorio explained that the reason for this finding was because of the blanks on the consent form regarding the risks and complications of the particular procedure. She further explained that the MRP could not verify whether the risks and complications were discussed with Ms. Jackson. Both doctors agreed that oral consent (ie., a conversation with the patient) would satisfy the standard of care. Both doctors also agreed the standard of care required that Dr. Williams explain the procedure — including that it involved removing the joints of the toes — and the risks of the procedure.

As to the procedure, Dr. Lorio testified that arthroplasty is a “joint-destruction” procedure; the procedure involves the removal of the joint in order to relieve pain. Dr. Adley testified that part of the procedure is to reduce the deformity and to shorten the toe. Shortening of the toe, he explained, is not really Ra risk but an outcome of the surgery. Dr. Adley also explained that Dr. Williams’ notation in Ms. Jackson’s chart that he discussed “risks versus benefits” indicated that “Dr. Williams discussed the surgical procedure and risks and benefits with the patient.”

Melody Spears, who testified by video deposition, stated that her sole connection with Dr. Williams was that she worked as a pre-operative nurse in Methodist Hospital’s surgery center; she had no employment relationship with Dr. Williams. Ms. Spears had no recollection of Ms. Jackson; hence, her testimony was based solely on her review of the medical records. Ms. Spears testified that, as part of her preoperative assessment, she had Ms. Joseph resign the Methodist Consent Form; Ms. Spears also signed the form as a witness. Ms. Spears testified that, also as part of the assessment, she asked Ms. Jackson to rate her pain on a scale of “1 to 10,” with “10” being the most severe. According to Ms. Spears, Ms. Jackson rated her pain in the highest category of “7 to 10.” Ms. Spears testified that Ms. Jackson’s response to the question of what improved or worsened the pain was “taking the shoe off and that the pain that she’s ... experiencing comes strictly from having the shoe pressure.”

Ms. Jackson testified that she went to Dr. Williams for treatment of a corn on her right second toe. She testified that she complained to Dr. Williams of pain solely due to the corn on her toe when she wore pointed toe shoes. She denied complaining of pain in both feet. Dr. Williams took x-rays and informed her that she was developing hammer toe and that she had a torn Achilles tendon. He further informed her that the only way to correct the hammer toe condition was surgery. He still further informed her that her health insurance would not pay to remove the corn, but would pay for the correction of her hammer toe condition. |7She expressed her concern to Dr. Williams about the surgery interfering with her upcoming wedding; his response was that “most of his patients could start back wearing— start back working within four weeks, and they’re usually fine after the fourth week.”

Ms. Jackson admitted that she signed the Methodist Consent Form in Dr. Williams’ office and that she resigned that form at the hospital on the morning of the surgery. She denied telling the pre-opera-tive nurse, Ms. Spears, that her pain was in the highest category of “7 to 10.” She admitted that she signed an anesthesiologist consent form at the hospital, which enumerated multiple general risks. She also admitted reading the Methodist Consent Form, which included a list of general risks and a statement that “there were no guarantees from this surgery.” Ms. Jackson testified that when she was in college she took some premising courses and that she had at least three prior surgeries. She acknowledged that she was generally familiar with standard consent forms and that she was aware of the general risks of surgery. However, she testified that she “needed Dr. Williams to tell [her] ... the risks that involved the particular surgery that he was performing.”

Ms. Jackson acknowledged that she had met with Dr. Williams and, as stated on the consent form, they “discussed the common problems and risks associated -with the surgery.” She also acknowledged that on all three pre-operative visits Dr. Williams discussed the surgical procedure with her. During those discussions, Dr. Williams told her that it was a minor surgery and that the only risk was minor pain. She testified that Dr. Williams did not draw any diagrams to explain the procedure to her. Although she acknowledged that he told her that he was going to straighten out her toes and that he was going to have to cut her feet to do so, she denied being | stold any of the details regarding the surgery. Specifically, she denied being told that the surgery involved the removal of joints in her toes or that she would be unable to bend her toes again. Ms. Jackson testified that she would not have agreed to the procedure if he had told her it involved removing joints in her toes because her only problem was with a corn on one toe. She further testified that if the consent form had stated there was a risk that she would be unable to bend her toes, she would have “walked out of the office.”

Dr. Williams testified that Ms. Jackson presented to his office for three postoperative visits with pain in her toes. On all three office visits he discussed with her the risks of the surgery and the procedure. On the third visit, he made an entry in the chart documenting the discussion of “risks versus benefits.” The benefits, he explained, included “relieving pain so that you can get into the shoes that you want.” He denied ever telling Ms. Jackson that it was a simple procedure; indeed, he testified that he “[njever would tell a patient that.” He testified that he told Ms. Jackson that he was going to remove the joints in her toes.

Dr. Williams further testified that not only did he obtain Ms. Jackson’s verbal consent, but he also obtained her signature on the Methodist Consent Form. He explained that the consent form was required by the hospital. When asked about the blank areas on the consent form, he testified that the reason he did not write anything in the blank areas was because he had three prior discussions with Ms. Jackson. During those discussions, he went over with Ms. Jackson the specific risks involved in the procedure. He also went over with her the drawings he made to illustrate the procedure.

On cross-examination, Dr. Williams testified that in all the one thousand arthro-plasty procedures he has performed, he has sat down with each and every 19one of those patients and explained the surgery, including the risks, benefits, and complications. More particularly, he testified that in all the cases he explained the procedure, drew diagrams to illustrate the procedure, explained that the procedure includes removal of the joint of the toe, explained the risk and complications of the procedure, and explained that the toe would not function as it did before the removal of the joint.

Ms. Joseph was allowed to proffer the testimony of Deneen Smith, a former patient of Dr. Williams. Ms. Smith testified that she went to Dr. Williams for what she thought were corns on her feet. She denied having any pain. He diagnosed her as having a hammer toe condition and recommended surgery. He described the surgical procedure as “primarily removing the corns” and told her that after the surgery her feet would be normal. He did not describe any risk involved in the procedure. Rather, he told her it was “a minor procedure.” She testified that Dr. Williams did not sit down with her and explain the surgical procedure to her. Nor did he draw any diagrams to explain what he was going to do. She denied being told by Dr. Williams that he was going to remove the joints of her toes. She testified that she only met with him once.

The jury found in favor of the defendants, Dr. Williams and his insurer. On May 30, 2012, the trial court rendered judgment dismissing Ms. Jackson’s claim against the defendants and assessing court and jury costs against her. This appeal followed.

DISCUSSION

On appeal, Ms. Jackson asserts the following three assignments of error:

1. The trial court erred in denying Ms. Jackson’s Motion in Limine prohibiting Dr. Williams from introducing any testimony at trial to alter the Consent for h (/Treatment form executed by Ms. Jackson on two separate dates (the Methodist Consent Form).
2. The trial court erred in granting Dr. Williams’ Motion in Limine prohibiting Ms. Jackson from calling Deneen Smith as a witness in her case-in-chief.
8. The trial court erred in refusing to permit Ms. Jackson from calling Ms. Smith as a rebuttal witness.

All three assignments of error raise evidentiary issues pertaining primarily to the informed consent claim. This court reviews evidentiary issues, such as rulings on a motion in limine and exclusion of evidence, under an abuse of discretion standard. Cusimano v. Port Esplanade Condominium Ass’n, Inc., 10-0477, pp. 6-7 (La.App. 4 Cir. 1/12/11), 55 So.3d 981, 935-36 (citing La. C.E. art. 103 and Brandt v. Engle, 00-3416, p. 10 (La.6/29/01), 791 So.2d 614, 620). We separately address each of these issues.

I.

The first issue is whether the trial court erred in denying Ms. Jackson’s Motion in Limine prohibiting Dr. Williams from introducing any testimony at trial to alter the Methodist Consent Form executed by Ms. Jackson on two separate dates. Ms. Jackson acknowledges that under the Louisiana Uniform Consent Law (former La. R.S. 40:1299.40(A)) informed consent can be either written or oral. See Siliezar v. East Jefferson General Hosp., 04-939 (La.App. 5 Cir. 1/11/05), 894 So.2d 373, 379 (rejecting the argument that the failure to obtain a written consent is malpractice per se and holding that a patient’s consent may be verbal). Nonetheless, she contends that because the Methodist Consent Form satisfies all the requirement of former La. R.S. 40:1299.40(A), the trial court erred in failing to exclude parole evidence — Dr. Williams’ testimony or his office records — to alter what was, or what was not, contained in the written consent form.

Ms. Jackson first raised this issue in response to Dr. Williams’ discovery responses and deposition testimony that he thoroughly informed her of all the risks associated with the surgical procedure. Particularly, she noted that, in response to a discovery interrogatory, Dr. Williams enumerated the specific risks of the surgical procedure that he discussed with her— but admittedly did not enumerate 11Ppn the Methodist Consent Form — as including: “excessive shortened toe, excessive bleeding, hematoma or blood under the skin, seroma or fluid under the skin, prolonged healing time, constant pain, infection, edema or excessive swelling, stiffness, numbness, reaction to sutures, keloids, hyper-tropic scars, recurrence of the deformity and continued difficulty walking.” Citing Dr. Williams’ failure to enumerate the specific risks of the procedure in the blank spaces on the Methodist Consent Form, Ms. Jackson argued in her motion in li-mine that under former La. R.S. 40:1299.40(A) no parole evidence was admissible to vary terms of this written consent form that satisfied the requirements of that statute. Stated otherwise, she argued that since the consent form was executed in compliance with former La. R.S. 40:1399(A), her consent was “presumed to be valid and effective” under the statute, La. R.S. 40:1399(B)(before 2012 amendment), and parole evidence was inadmissible.

In November 2007, the trial court denied the motion in limine. In December 2007, the trial court provided written reasons for its ruling; the court reasoned that “pursuant to LSA-R.S. 40:1299.40(E)(2)(b), Subsections A and C should be used conjunctively to obtain informed consent.” Although Ms. Jackson filed a notice of intent to file a writ application challenging that ruling, no writ was filed. Thereafter, the trial court judge retired to run for mayor; and a new judge was assigned to the case. Ms. Jackson then filed a Motion to Re-urge the Motion in 11sLimine. The new judge denied that motion. Ms. Jackson’s writ application seeking review of that ruling was denied by both this court and the Louisiana Supreme Court. Joseph v. Williams, 11-807 (La.App. 4 Cir. 7/27/11) (unpub.), writ denied, 11-1776 (La.10/14/11), 74 So.3d 715.

On appeal, Ms. Jackson re-urges that the trial court’s interlocutory ruling denying her motion in limine was erroneous. Dr. Williams asserts two counterarguments, a procedural and a legal one. Procedurally, he contends that this evidentiary issue is not properly before this court for two reasons: (i) the lack of a contemporaneous objection at trial to the introduction of this evidence, and (ii) the law of the case doctrine. Legally, he contends that the trial court’s ruling was correct. Because we agree with Dr. Williams’ position that the trial court was legally correct in ruling that parole evidence was admissible, we pretermit addressing his procedural arguments.

The law of informed consent in Louisiana is both jurisprudential and statutory. Tipton v. Campbell, 08-0139, 08-0140, p. 10 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, 36; Martin v. Berthier, 09-1360, pp. 5-7 (La.App. 4 Cir. 5/19/10), 39 So.3d 774, 778-80. The governing statutory provision is former La. R.S. 40:1299.40(A). The Methodist Consent Form, as Ms. Jackson concedes, complies 1 uwith the statute. First, the Methodist Consent Form “sets forth in general terms the nature and purpose of the procedure.” La. R.S. 40:1299.40(A)(l). Second, “the known [general] risks” enumerated in the statute — “death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars”— are listed on the form. Id. Third, the form contains the required language that the patient “acknowledges that such disclosure of information has been made and that all questions asked about the procedure ... have been answered in a satisfactory manner.” Id. Given the Methodist Consent Form complies with the statute, Ms. Jackson contends that Dr. Williams should have been prohibited from introducing parole evidence to alter what was (or was not) contained in the written consent form.

Ms. Jackson’s contention confuses the legally distinct concepts of “written consent" and “informed consent.” Interpreting former La. R.S. 40:1299.40(A)(1), the Supreme Court in Hondroulis v. Schuhmacher, 553 So.2d 398, 418 (La.1989)(cm reh’g), emphasized that the Legislature labeled the presumption arising upon executing a written consent in compliance with the statute as one of “consent,” not “informed consent.” Id. at 417. The Supreme Court noted that the label the Legislature selected indicated that it did not intend “to impose the legal consequences of ‘informed consent’ by rule of law upon every patient who signs a 11ficonsent form but that the aim was to provide that the presumed fact (consent to encounter the risks adequately described in the consent form in layman’s terms) arises from proof of the basic fact (execution of a consent form containing such adequate risk information).” Id.

The Supreme Court in Hondroulis took judicial notice that almost a dozen other states had enacted similar statutes “clothing the writing with a presumption of validity.” Id. at 418. The Supreme Court also noted that those similar statutory enactments had not been construed to drastically change the informed consent right of action. Id. (citing Alan Meisel and Lisa D. Kabnick, Informed Consent To Medical Treatment: An Analysis of Recent Legislation, 41 U. Pitt. L.Rev. 407, 468 (1980) (hereinafter “Meisel and Kabnick ”)). Likewise, in Hondroulis, supra, the Supreme Court held that the Louisiana Legislature by enacting La. R.S. 40:1299.40 did not intend to “make substantive alterations in the informed consent doctrine.” Id. at 418.

Statutory provisions that cloth a written consent with a presumption of validity, such as La. R.S. 40:1299.40, “suggest parole evidence problems.” Meisel and Kabnick, 41 U. Pitt. L.Rev. at 471. However, this suggestion — which is the basis of Ms. Joseph’s argument regarding the inadmissibility of parole evidence to alter the Methodist Consent Form — has been uniformly rejected. “Although a signed consent form detailing the nature of the procedure and risks is evidence that the physician has obtained informed consent, it is ordinarily not conclusive of this issue.” David W. Louissell & Harold Williams, 4 MEDICAL MALPRACTICE § 22.08 at 22-44.49 (2012). Indeed, the underlying purpose of the informed consent doctrine dictates that “in most situations an oral explanation — as opposed | ^to a formalistic rendering of information— should be provided.” Meisel and Kab-nick, 41 U. Pitt. L.Rev. at 472. As the commentator explains:

[W]hen the contents of the writing are incomplete or ambiguous — such as where the form conclusorily recites that the patient has been “adequately” informed or that all questions have been “satisfactorily” answered — plaintiffs (and defendant’s) testimony must be taken in order to ascertain what was actually disclosed, and to determine whether it was “adequate” or “satisfactory.” Therefore, it is unlikely that either the presumption created by the statutes or the fact that consent was obtained in writing will preclude the patient from contradicting the contents of the writing.

Id. at 472-73. As the commentator concludes, “[c]ertainly no such [written consent] form will resolve common testimonial conflicts between the doctor and the patient.” Id. at 477.

Before the enactment of the Louisiana Uniform Consent Law, the jurisprudence of this state “attached no particular legal significance to a medical consent merely because it happened to be in writing.” Hondroulis, 553 So.2d at 418. “[A] patient could introduce virtually any kind of relevant evidence to prove lack of consent or rebut the doctor’s evidence that the patient had consented to the therapy.” Id. The same is true after the enactment. See Soileau v. Med-Express Ambulance Service, Inc., 03-351, p. 9 (La.App. 3 Cir. 10/1/03), 856 So.2d 92, 98 (noting that the jurisprudence of this state has found informed consent based on a written consent form supplemented by a physician’s testimony and citing Bourgeois v. McDonald, 622 So.2d 684 (La.App. 4th Cir.1993)).

Ms. Jackson’s reliance on Dawes v. Kinnett, 99-3157 to 99-3159 (La.App. 4 Cir. 1/17/01), 779 So.2d 978, as dictating a different result is misplaced. In [ )7Pawes, supra, the trial court found a lack of informed consent. In so doing, the trial court, which this court affirmed, reasoned that the doctor’s testimony that he orally informed the patient was self-serving given that the material risks were noted in neither the consent form nor the doctor’s office records. The court in Dawes, supra, thus made a credibility call based not only on the consent form, but -also on parole evidence presented at trial.

In sum, neither the- Louisiana Uniform Consent Law nor the presence of a written consent form precludes a physician from offering otherwise relevant evidence to rebut a patient’s claim of lack of informed consent. Accordingly, the trial court did not err in denying Ms. Jackson’s motion in limine.

II.

The second issue is whether the trial court erred in granting Dr. Williams’ motion in limine to exclude the testimony of his former patient, Ms. Smith, in Ms. Jackson’s case-in-chief. Ms. Jackson contends that she should have been allowed to call Ms. Smith as a witness to establish Dr. Williams’ habit (or practice) of performing unnecessary surgical procedures on patients who present for minor complaints. She contends that Ms. Smith’s testimony, coupled with her own testimony, establishes that Dr. Williams had a habit of persuading patients to submit to surgery based on his failure to disclose the risks of the surgery. Ms. Jackson emphasizes that the trial court not only allowed Dr. Williams to testify as to his habit (or routine) in obtaining informed consent, but also instructed the jury that such habit evidence could be considered in deciding the informed consent issue.

118Pr. Williams counters that Ms. Smith’s testimony is not proper habit evidence because it only pertains to one other specific instance. In support, he cites State v. Martin, 582 So.2d 306 (La.App. 1st Cir.1991), in which the court found a single instance insufficient to establish habit. The court in Martin reasoned that “[w]hen the evidence of a habit consists of ‘specific instances of conduct,’ the instances must be sufficient in number to warrant a finding that the habit existed or that the practice was routine.” Id. at 315; see also State v. Flowers, 574 So.2d 448 (La.App. 2d Cir.1991) (finding three instances insufficient to establish habit).

Citing Cerniglia v. French, 00-2768, pp. 5-8 (La.App. 4 Cir. 4/3/02), 816 So.2d 319, 323-25, Dr. Williams further points out that the testimony of another patient regarding an alleged similar complication is inadmissible and is “similar to admitting evidence of prior arrests in criminal trials.” Cerniglia, 00-2768 at p. 8, 816 So.2d at 324. As this court explained in Cemig-lia, “[ejvidence of prior arrests is inadmissible in criminal trials to prevent the jury from concluding that the defendant has a propensity for committing crimes; in this case, the similar acts evidence should have been excluded to prevent the jury from concluding that Dr. French has a propensity to commit medical malpractice.” Id. Given that Ms. Smith’s testimony was neither habit evidence nor otherwise admissible evidence, Dr. Williams contends that the trial court correctly excluded it. We agree.

The governing statutory provision is La. C.E. art. 406, which provides:

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity |1swith the habit or routine practice. The evidence may consist of testimony in the form of an opinion or evidence of specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

In this case, it is not disputed that the trial court correctly allowed Dr. Williams to introduce habit evidence regarding his routine of providing verbal disclosure. In contrast, the former patient’s (Ms. Smith’s) testimony was not admissible habit evidence; rather, the former patient’s testimony was inadmissible other similar acts (character) evidence. See Cardinal v. Family Foot Care Centers, Inc., 40 Ohio App.3d 181, 182, 532 N.E.2d 162, 164 (1987) (rejecting the characterization of the defendant’s former patients’ testimony that they were “cajoled into unnecessary surgery” as admissible habit evidence and determining it was inadmissible character evidence).

As this court has recognized, “[ajpart from cross-examination, Louisiana law does not permit the independent introduction into evidence of a defendant-physician’s similar medical treatment of other patients.” Beaucoudray v. Walsh, 07-0818, p. 27 (La.App. 4 Cir. 3/12/09), 9 So.3d 916, 931 (citing Cerniglia, supra). As a commentator has noted, “[wjhile courts should allow habit evidence [in informed consent cases], they should not allow former patients to testify either that the physician informed or failed to inform them of the risks involved in the particular procedure in question under the habit evidence rule.” Justin L. Ward, Physician Habit Evidence in Informed Consent Cases, 23 J. Legal Med. 269, 279 (2002). The trial court thus did not abuse its discretion in refusing to allow Ms. Smith to testify as a witness in Ms. Jackson’s case-in-chief.

III.

12pThe final issue Ms. Jackson raises on appeal is whether the trial court erred in refusing to allow her to call the same former patient, Ms. Smith, as a rebuttal witness. According to Ms. Jackson, Ms. Smith’s testimony would have been the same as her testimony; to wit: “Dr. Williams did not inform her as to how the procedure would be performed, he told her there were no risks or complications involved with the procedure, he drew no diagrams explaining the procedure and the consent for treatment form that she signed listed no risks or complications associated with the procedure.” The gist of Ms. Jackson’s contention is that Dr. Williams “opened the door” to such rebuttal evidence by testifying that he sat down with each and every of the one thousand arthro-plasty patients on which he had performed the procedure and explained to them the risks, benefits, and the expected results. Ms. Jackson contends that Ms. Smith should have been allowed to testify as a rebuttal witness to attack (impeach) Dr. Williams’ credibility.

Rejecting this argument, the trial court excluded Ms. Smith from testifying as a rebuttal witness. In so doing, the trial court provided the following oral reasons:

I do think that it does go to habit and what he routinely does.... “Evidence which supplants that already adduced by the plaintiff is not admissible as rebuttal. Rebuttal evidence is confined to new matters adduced by the defense and not to repetition [of] the plaintiffs theory of the case.” And the theory of the ease is that he didn’t do the consent form. So that’s what this is. I don’t think he opened the door saying, “What do you do with all your patients?” I don’t think he did that. And, therefore, the Court is not going to allow Ms. Deneen Smith to testify to the jury.

Contrary to the trial court’s finding, we find that Dr. Williams opened the door by testifying that in “each and every” case he follows the same routine of disclosure.

|21A similar issue was addressed by the Arkansas Supreme Court in Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). In that case, the Arkansas Supreme Court held that the rebuttal testimony of three former patients regarding what the doctor told them before the surgery was admissible to contradict the doctor’s testimony about what he told “all” of his patients. The court reasoned that the three former patients’ testimony was admissible because it directly rebutted the doctor’s testimony that he routinely informed all of his patients of the risks.

As in Zearley, supra, Ms. Smith’s proffered testimony was admissible because it directly rebutted Dr. Williams’ testimony regarding what he routinely told “each and every one” of his arthroplasty patients. See La. C.E. art. 611(E) (providing that “[t]he plaintiff in a civil case and the state in a criminal prosecution shall have the right to rebut evidence adduced by their opponents.”) Ms. Smith’s proffered testimony was proper rebuttal evidence. Nor can we conclude, contrary to Dr. Williams’ contention, that the introduction of such rebuttal evidence would have been unduly prejudicial. We thus conclude, under the facts presented in this case, that the trial court abused its discretion in excluding Ms. Smith as a rebuttal witness.

Our finding that the trial court made a legal (evidentiary) error in excluding such evidence does not necessarily dictate that the case be remanded for a new trial, as Ms. Jackson requests. Rather, we must determine whether the legal error was consequential — materially affected the outcome — or was harmless. Walley v. Vargas, 12-0022, pp. 4-5 (La.App. 1 Cir. 9/21/12), 104 So.3d 93, 98-99; see also Brooks v. Southern University and Agr. and Mechanical College, 03-0231, pp. 4-5 (La.App. 4 Cir. 7/14/04), 877 So.2d 1194, 1200 (noting that a de novo review should be limited to consequential errors, which are those that have prejudiced or tainted the verdict rendered).

In Walley, supra, the court outlined the following procedure for determining whether a legal error was consequential, warranting a de novo review on appeal:

If the exclusion of evidence taints a trial court’s findings, this court steps into the shoes of the factfinder and conducts a de novo review of all the admissible evidence to ensure a fair trial and a fair judgment. Nonetheless, a de novo review should not be undertaken for every evidentiary exclusion error. Rather, a de novo review should be limited to consequential errors; that is, the error prejudiced or tainted the trial court’s finding with regard to a material factual issue. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735; Wingfield v. State Department of Transportation and Development, 2001-2668 (La. App. 1st Cir.11/8/02), 835 So.2d 785, 799....
In some cases, a preliminary de novo review can be limited to a determination of the impact of the excluded evidence on the overall findings. If it is clear from the initial limited de novo review that the excluded evidence could not have permissibly changed the ultimate findings of the trier of fact, the judgment should not be vacated and reviewed de novo. In the absence of a tainted fact-finding process, the trial court’s ultimate findings are subject only to a manifest error review. See Wingfield, 835 So.2d at 799.

Walley, 12-0022 at pp. 9-10, 104 So.3d at 93.

Based on our review of the evidence in the record and our initial de novo review of Ms. Smith’s proffered testimony, we find the trial court’s legal (evidentiary) error in excluding Ms. Smith as a rebuttal witness did materially affect the outcome of this case and thus is consequential. A de novo review of the | ⅞¾trial court’s factual finding thus is warranted. Walley, supra (citing Wingfield, 835 So.2d at 800); Brooks, supra.

IV.

When, as in this case, a de novo review of the record is warranted, the appellate court’s function is to make an independent, de novo review of the record and to determine which party is entitled to prevail by a preponderance of the evidence. Leard v. Schenker, 11-1509, p. 3 (La.App. 4 Cir. 3/14/12), 87 So.3d 270, 272 (citing Chambers v. Village of Moreauville, 11-0898, p. 2 (La.1/24/12), 85 So.3d 593 (citing Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735)). “Proof is sufficient to constitute a preponderance when the entirety of the evidence both direct and circumstantial, shows the fact sought to be proved is more probable than not.” Hanks v. Entergy Corp., 06-477, p. 19 (La.12/18/06), 944 So.2d 564, 57. Applying this standard, we cannot conclude that Ms. Jackson met her burden of proving negligence on the part of Dr. Williams.

As to the informed consent claim, the evidence presented at trial centered on the second element required to establish an informed consent claim: “[a] failure to disclose a risk on the part of the physician.” Brandt v. Eagle, 00-3416, p. 7, n.1 (La.6/29/01), 791 So.2d 614, 618 (collecting cases). The written consent form (the Methodist Consent Form) only disclosed the general risks of the procedure; |24the area on the form for listing the specific risks was left blank. On the issue of whether a verbal disclosure was made, Dr. Williams and Ms. Jackson gave diametrically opposed testimony regarding the discussions that took place during the three pre-operative visits regarding the surgical procedure.

At trial, the sole evidence Ms. Jackson offered, besides her own testimony, to support her contention that Dr. Williams failed to disclose the specific risks to her was Ms. Smith’s proffered testimony. As noted, Ms. Smith was a prior patient of Dr. Williams who had the same surgery. Ms. Smith’s testimony was virtually identical to Ms. Jackson’s testimony. Specifically, Ms. Smith’s testimony was that Dr. Williams told her that it was a very simple procedure with no risks involved, that he did not draw any diagrams for her, that he did not explain the surgery to her, and that he did not tell her he was going to take the joints out of toes. However, the sole purpose for which Ms. Smith’s testimony was admissible was to contradict Dr. Williams’ testimony that in every case he routinely has disclosed the complications, risks, and benefits of the procedure.

At trial, Dr. Williams testified in detail not only regarding what he routinely has told his surgery patients, but also what he specifically recalled having told Ms. Williams during the three pre-operative visits. He testified that he told her on three separate pre-operative visits what the surgical procedure involved and that he explained the complications, risks, and benefits of the procedure. The benefits, as Dr. Williams explained at trial, included alleviating the pain. Although Ms. Jackson testified that her pain only was from the corn on her toe when she wore pointed shoes and denied telling the pre-operative nurse that her pain was severe (in the “7 to 10” category), her testimony was contra-dieted. Dr. Williams testified, consistent with his contemporaneously documented notes in the chart, that Ms. Jackson presented with pain on the three pre-opera-tive visits. Likewise, Ms. Spears testified that Ms. 12⅞Jackson rated her pain on the day of the surgery as severe.

Although Ms. Jackson testified that Dr. Williams neither explained the procedure to her nor disclosed the risks, complications, and non-surgical options, she acknowledged that during each of the three pre-operative office visits Dr. Williams discussed the surgery with her. In this respect, this case is distinguishable on its facts from Hartman v. D'Ambrosia, 95-0393 (La.App. 4 Cir. 11/30/95), 665 So.2d 1206.

In Hartman, supra, this court affirmed a finding of liability on the part of an orthopedist for failing to disclose that the outcome of the surgical procedure would not — as the patient desired and the doctor knew — enable the patient to wear high-heeled shoes again. In that case, unlike this one, the patient only saw the doctor once before surgery, and that pre-opera-tive visit was “quite brief, as little as fifteen minutes, and the time spent included some purely social conversation. This would have left little time for Dr. D’Ambrosia to give much explanation of the risks of the surgery.” Hartman, 95-0393 at pp. 1-2, 665 So.2d 1206, 1207. Unlike in Hartman, supra, in the instant case there were three pre-operative surgical visits on which Dr. Williams had the opportunity to explain the risks of the surgical procedure.

In support of his contention that he explained the risks to Ms. Jackson, Dr. Williams relied upon his contemporaneous notes in the chart. In the chart, Dr. Williams documented that he discussed the risks and benefits of the operation with Ms. Jackson at the third office visit; this was the same visit on which she first signed the Methodist Consent Form. At trial, Dr. Alden, a member of the MRP, corroborated Dr. Williams’ testimony that this “risks versus benefits” notation in the chart documented that Dr. Williams discussed the risks and benefits with Ms. |MJackson at that office visit. Accordingly, we cannot conclude, based on our de novo review of the record, that Ms. Jackson met her burden of proving by a preponderance of the evidence all the elements of a lack of informed consent claim. She failed to establish the second element — a failure to disclose a risk on the part of the physician.

As to Ms. Jackson’s malpractice claims other than informed consent, two members of the MRP, Dr. Lorio and Dr. Adley, testified at trial reaffirming their opinion, expressed in the MRP opinion, that the pre-operative treatment, operative treatment, and post-operative treatment was reasonable, appropriate, and met the standard of care. No expert evidence was presented at trial to the contrary. Hence, Ms. Jackson failed to meet her burden of proving by a preponderance of the evidence the other malpractice claims.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . At the time of the surgery, the plaintiff's name was Terri Joseph. Shortly after the surgery, the plaintiff was married. For ease of reference, we refer to the plaintiff throughout this opinion by her married name, Ms. Jackson.

      . Hammer toe is defined as "toe where the middle joint is permanently bent downwards.” P.H. Collin, DICTIONARY OF MEDICINE 199 (3d ed.2000).

      . Melody Spears, the nurse who was responsible for Ms. Jackson's pre-operative care, explained that Ms. Jackson was asked to resign the consent form at the hospital because her initial signature on the form, dated July 20, 2004, was not witnessed.

      . Ms. Spears testified by video deposition in lieu of live testimony.

      . The Methodist Consent Form included the following pertinent sections:
      • A section entitled: “MATERIAL RISK OF TREATMENT/PROCEDURE,” which includes the following typed subsections:
      (a)All medical or surgical treatment involves risks. Listed below are those risks determined by your doctor associated with this procedure that we believe a reasonable person in your (the patient’s) position would likely consider significant when deciding whether to have or forego the proposed therapy. Please ask your physician if you would like additional information regarding the nature or consequences of these risks, their likelihood of occurrence, or other associated risks that you might consider significant but may not be listed below. [The area underneath subsections (a) was left blank.]
      (b) Additional risks (if any) particular to the patient because of a complicating medical condition are: [The area underneath subsections (b) was left blank.]
      (c) Risks generally associated with any surgical treatment/procedure, including anesthesia are: death, brain damage, disfiguring scars, quadriplegia (paralysis from neck down), paraplegia (paralysis from waist down), the loss or loss of function of any organ or limb, infection, bleeding, and pain.
      • A section entitled: “REASONABLE THERAPEUTIC ALTERNATIVES AND THE RISKS ASSOCIATED WITH SUCH ALTERNATIVES ARE:” [The area underneath this section was left blank.]

      . La. C.E. art. 103 provides:
      A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
      (1) Ruling admitting evidence. When the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection; or
      (2) Ruling excluding evidence. When the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.
      B. Record of ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.
      C. Hearing of jury. Injury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or asking questions in the hearing of the jury.

      . At the time of Ms. Joseph's surgery, La. R.S. 40:1299.40 (which in 2012 was repealed and replaced by La. R.S. 40:1299.39.5.) provided:
      A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means pursuant to R.S. 40:1299.40.1, to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is evidenced by a signature, marking, or affirmative action through electronic means, by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
      (2) In addition to the information required to be disclosed in Paragraph (1) of this Subsection, where the medical treatment involves the surgical implantation of "Norplant” contraceptive devices, the explanation to the patient shall include the known and significant or other material risks, the known adverse results, and alternative methods of contraception.
      B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such consent.
      C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (1) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

      . La. R.S. 40:1399(B), before 2012 amendment, provided that "no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such consent.”

      . La. R.S. 40:1299.40(E)(2)(b), prior to the 2012 amendment, provided:
      Consent to medical treatment may be evidenced according to the provisions of Subsections A and C of this Section or, as an alternative, a physician or other health care provider may choose to avail himself of the lists established by the Louisiana Medical Disclosure Panel pursuant to the provisions of this Subsection as another method by which to evidence a patient’s consent to medical treatment.

      . As to the procedural issues, the law of the case doctrine, even when it applies, is discretionary. Frank L. Maraist and Harry T. Lem-mon, 1 LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE § 6:7, p. 134 (2d ed.2012). Insofar as the lack of a contemporaneous objection, the Louisiana Code of Evidence (La. C.E. art. 103), unlike the Federal Rules of Evidence, is silent on whether a party is required to renew an evidentiary objection on which a definite ruling is obtained pre-trial by motion in limine in order to preserve that claim for appeal. The federal rules of evidence expressly provide that "[ojnce the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Federal Rules of Evidence Rule 103(b). As a commentator points out, this provision, which was added to the federal rule in 2000, eliminates the procedural trap asserted here because it "apparently eliminates the need for a party to make continuous objections, or to make an objection ‘general’ to a line of questioning." Frank L. Maraist, 19 LOUISIANA CIVIL LAW TREATISE, EVIDENCE AND PROOF § 2.7 (2012 ed.). The commentator further points out that before the 2000 amendment "federal courts adhered to the rule that a motion in limine is insufficient to preserve error in the admission of evidence where the contemporaneous objection requirement of Rule 103 is not met." Id. The commentator still further points out that "[i]f evidence is deemed admissible on a motion in limine, the opponent probably should reurge the objection when the evidence is offered at trial.” Id.

      . Under the section of the form entitled: "TREATMENT/ PROCEDURE: Description, nature of the treatment/procedure,” is handwritten:
      "Surgical management of painful hammer toe and posterior heel spurs by cutting skin, soft tissue and bone of the 2nd, 3rd, 4th, 5th toe and the heels of the right and left feet under local anesthesia; introduce sedation with possible general anesthesia also with the possibility of doing an Achilles tendinectomy."
      Although Ms. Jackson indicates that she was unsure if this handwritten statement regarding the nature of the procedure was on the form when she signed it, the Methodist Consent Form expressly admonishes the patient regarding blanks in the form. The form includes the following patient-acknowledgement: "I have read and understand all information set forth in this document, including any attachment, and all applicable blanks were filled in prior to my signing.”

      . In Soileau v. Med-Express Ambulance Service, Inc., 03-351 (La.App. 3 Cir. 10/1/03), 856 So.2d 92, the Third Circuit rejected the plaintiffs' contention that the trial court erred in denying their motion in limine, which sought to prevent the defendant from presenting evidence regarding the verbal warnings that were allegedly given to the plaintiff to supplement the written consent.

      . The trial court gave the following jury instruction regarding habit evidence:
      With regard to what risks were disclosed by the physician to the patient prior to surgery, a doctor’s routine habit of discussing the procedure and risks associated with the procedure is admissible into evidence and may be considered by the jury to show the doctor acted in conformity with his routine practice when he discussed the risks with the patient.

      . The trial court allowed Ms. Smith’s testimony to be proffered pursuant to La. C.C.P. art. 1636, which provides, in part, that ”[w]hen the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.”

      . The jurisprudence has enunciated the following four-pronged test that a plaintiff asserting an informed consent claim must satisfy:
      1. The existence of a material risk unknown to the patient;
      2. A failure to disclose a risk on the part of the physician;
      3. That the disclosure of the risk would have led a reasonable patient in the patient’s position to reject the medical procedure or choose another course of treatment; and
      4. Injury.

        Brandt v. Engle, 00-3416, p. 7, n.1 (La.6/29/01), 791 So.2d 614, 618 (collecting cases).