author: PITMAN, J.

text:
    John Mack EVANS, Sr., Plaintiff-Appellant v. HERITAGE MANOR STRATMORE NURSING & REHABILITATION CENTER, L.L.C., et al., Defendant-Appellee
    No. 51,651-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    GORDON E. ROUNTREE, A.P.L.C., Counsel for Appellant
    BOLEN, PARKER, BRENNER, LEE & ENGELSMAN, LTD., By: Eric J. Miller, Alexandria, Counsel for Appellee
    Before WILLIAMS, DREW, and PITMAN, JJ.
   PITMAN, J.

Plaintiff John Mack Evans, Sr., appeals the judgment of the trial court which sustained the exception of prescription filed by Defendant Heritage Manor Stratmore Nursing & Rehabilitation Center, L.L.C., et al. ("Heritage Manor"), and dismissed his suit for medical malpractice and other actions. For the following reasons, we reverse.

FACTS

Plaintiff, age 77, sustained a massive stroke at home in November 2011. The effects of this stroke were many, including left side paralysis, affected speech, inability to walk, incontinence, emotional and mental anguish and damage and erratic behavior. After his stroke, Plaintiff became easily agitated and verbally and physically aggressive. He is bedridden and requires assistance in transferring to and from his wheelchair.

Following his stroke, Plaintiff was hospitalized for several months and then was admitted to Heritage Manor on February 21, 2012, by his treating physician, Dr. Robert Hernandez, for rehabilitation in the skilled nursing facility. Dr. Hernandez, an internal medicine specialist, is the medical director of Heritage Manor, as well as The Glen, another nursing home in Shreveport. Dr. Hernandez's treatment for Plaintiff at the skilled nursing facility was to include, but not be limited to, occupational therapy, physical therapy and speech therapy. Because Plaintiff was paralyzed on his left side, Dr. Hernandez's standing orders were to turn Plaintiff often and to keep him clean and dry to prevent the development of decubitus ulcers, pressure sores and complications which would jeopardize his rehabilitative care.

On March 14, 2012, Samantha Edwards, a certified nursing assistant and employee of Heritage Manor, entered Plaintiff's room around 5:00 a.m. to change his diaper and T-shirt, which were wet with urine. Plaintiff protested her insistence that she change him and he resisted care. Rather than seeking assistance from an LPN on duty, Ms. Edwards persisted and became more aggressive in her effort to change Plaintiff. Her efforts to force care on him resulted in Plaintiff taking a swing with his right hand and striking her. In what Ms. Edwards characterized as an immediate reflex type response, she struck Plaintiff with her fist and long acrylic nails on and around his right eye.

As a result of the incident, Plaintiff sustained lacerations and scratches above his right eyebrow in and around his right eye. His wound bled and there was bruising around his right eye and eyebrow with a red area in the shape of the letter "C" beginning midway from the right edge of his eyebrow and continuing to the top of his right cheekbone. He also had bruising under his right eye and on the inner aspect of his nose. Ms. Edwards was immediately discharged from employment at Heritage Manor.

After the incident, Plaintiff was afraid of the caretakers at Heritage Manor and announced he would protect himself and strike them if he was not treated appropriately. His behavior worsened and he became physically abusive, aggressive and difficult to control. Allegedly, because of the adverse effect of the incident on Plaintiff's emotional and psychological condition, his treating physician transferred him to Brentwood Hospital in May 2012 to be treated by a psychiatrist.

The State Department of Health and Human Resources ("DHH") investigated the incident and found Heritage Manor violated regulations in several respects, including failing to obtain references on Ms. Edwards before hiring her and failing to exercise reasonable supervision to prevent residents from being injured. The DHH discovered that Ms. Edwards had disclosed in her employment application that she had previously been convicted of simple battery and that Heritage Manor had failed to follow its policy of not employing any person convicted of a crime.

Ms. Edwards was questioned about the incident and originally stated that Plaintiff was injured when she pulled his T-shirt over his head while attempting to change him; however, she later corrected her statement in a second interview with the Shreveport Police and stated that "when he struck me, my reflex-I reflex and I hit him back." She claimed she did not intend to injure him and regretted her action; it was simply an immediate response to his striking her. She was eventually cited for battery of the infirm. It is unclear what came of the citation, but she testified at a deposition that the "arrest" was later expunged from her record.

Because Plaintiff had been receiving medical care and treatment at Heritage Manor at the time of the incident on February 18, 2013, and the incident occurred during the course of medical care, he filed a request for a medical review panel in accordance with the Louisiana Medical Malpractice Act ("LMMA"). In an opinion dated September 8, 2014, the medical review panel stated:

The panel finds that Heritage Manor did fail to adequately vet the ACNA for past history and employment record and as such bears part of the blame for placing her in the situation where she struck Mr. Evans. However, the action of hitting Mr. Evans was the ACNA's action alone. The resulting injury from this physical contact, which was a laceration above the right eye, is related to this incident. However, no long-term complications, change in behavior, or other detrimental effects resulted from the incident. The patient's behavior after the incident was essentially the same as his behavior before the incident and his overall medical course is what would have been expected if the incident had not occurred.

A supplemental opinion was rendered on November 3, 2014, and the medical review panel stated:

The panel finds that Edwards was an employee of Heritage Manor when the conduct that is the subject of this proceeding occurred. The panel finds that the conduct of Edwards failed to comply with the appropriate standard of care. That conduct caused the injuries to the patient, as described in the panel's September 8, 2014, Opinion. Thus both Heritage Manor and Edwards were at fault, causing the injuries, as described in the September 8, 2014, Opinion.

On December 2, 2014, Plaintiff filed suit against Heritage Manor and alleged he was due damages under the LMMA, as well as for breach of fiduciary duty, failure to provide the care for which he had contracted and failure to provide sufficient training for staff and training of all rights and protection due patients under the Louisiana Nursing Home Bill of Rights ("LNHBR"), all of which caused injury to him. Heritage Manor answered and denied all allegations. It also alleged in its answer that at all times, it was a qualified health care provider pursuant to the LMMA and that to the extent any of Plaintiff's claims constituted "medical malpractice" within the meaning of the LMMA, any liability on its part was limited pursuant to that act.

On August 19, 2016, Plaintiff filed a motion for partial summary judgment on liability in its medical malpractice claim and attached the following 12 exhibits: (1) the opinions of the medical review panel; (2) an affidavit of Sandra Furguson, an RN expert and investigator for DHH with attachments; (3) Dr. Hernandez's affidavit; (4) the deposition of Shreveport Detective Holmes with exhibits; (5) the deposition of Samantha Edwards with exhibits; (6) portions of the deposition of Wesley Pepitone, Administrator of Heritage Manor;

(7) fingernail policy of Heritage Manor; (8) portions of Heritage Manor's employee personnel file on Samantha Edwards; (9) photographs of Plaintiff; (10) portions of Brentwood's records on Plaintiff, including Dr. Boswell's psychiatric evaluation and discharge summary; (11) Plaintiff's admission form of Dr. Patterson, Willis-Knighton Pierremont; and (12) Heritage Manor policy against hiring anyone convicted of a crime.

Dr. Hernandez's affidavit states:

"For bedridden patients, like Mr. Evans, part of their treatment is to keep them clean and dry as well as turning them frequently to reduce the risk of pressure sores, decubitus ulcers, infections, etc. so they can continue their rehabilitation treatment."

On August 22, 2016, Heritage Manor filed an exception of prescription and claimed that the incident occurred on March 14, 2012, but Plaintiff's petition was not filed until December 2, 2014. It claimed that Plaintiff's petition, filed more than two years after the date of the injury, is prescribed on its face and Plaintiff has the burden of proving some interruption or suspension of prescription in his favor. Further, it claimed in anticipation of Plaintiff's argument that prescription was suspended by the filing of a medical malpractice claim, that Plaintiff's claims arising from a battery did not arise from medical treatment and, therefore, are not malpractice claims pursuant to the LMMA. It also argued that the LMMA applies only to malpractice as defined in the act, and the filing of a complaint of malpractice did not interrupt or suspend prescription with respect to nonmalpractice claims. Last, it claimed that Plaintiff's nonmalpractice claims, not being subject to any suspension or interruption, have prescribed.

At the hearing on the exception of prescription and Plaintiff's motion for partial summary judgment, Dr. Hernandez testified regarding Plaintiff's care given at Heritage Manor, stating that the changing of the patient was "good medical care," but not considered medical treatment, even though the section of the patient's admission form was checked calling for him to be turned periodically and to be kept clean and dry. The purpose of the care was to prevent the development of decubitus ulcers ; and, in that regard, the care was successful.

Ms. Furguson, the RN who performed the investigation for the DHH, was available to testify, but did not. In her report for the DHH, she addressed the negligent hiring issue, the striking and the issue of Ms. Edwards' long fingernails. Plaintiff sought a stipulation allowing the entry in the record of her report in lieu of testimony, but Heritage Manor's attorney objected and stated that it was simply a survey report, which was specifically inadmissible pursuant to La. R.S. 13:3715.3, as it is considered a peer review report conducted by the state as a matter of law. He also argued that the report was inadmissible because it contained hearsay evidence. The trial court allowed Plaintiff's attorney to proffer the report.

The trial court heard the exception and, during the hearing, stated that the issue as the court appreciated it was:

[w]hether or not keeping Mr. Evans clean and dry and changing his diaper is that considered medical treatment sufficient to meet the act; and if it is, Number 2, whether or not the physical altercation or contact between he and the CNA is also medical treatment sufficient to be covered by the act.

It sustained the exception of prescription, finding the striking incident was an intentional tort, not considered medical malpractice; and, thus, the prescriptive period had expired. Because the suit had not been filed by March 14, 2013, all claims had prescribed. After sustaining the exception of prescription, it did not rule on Plaintiff's motion for partial summary judgment. Plaintiff appeals the judgment of the trial court dismissing his suit as untimely.

DISCUSSION

Classification of employee's action as an intentional tort

Plaintiff argues that the trial court erred in classifying Ms. Edwards' striking of him during medical care as an intentional tort, rather than considering that the tort occurred during the course of medical care, which he contends meets the definition of malpractice under the LMMA. He further argues that the definitions found in La. R.S. 40:1231.1(A)(9), (10), (13) and (22), which define "health care," "health care provider," "malpractice" and "tort," respectively, indicate that the incident at issue is covered by the LMMA.

Plaintiff asserts that it is clear his injury was caused during the time period when Ms. Edwards was attempting to provide medical care to him and that care was described by Dr. Hernandez as "good health care," who also testified that keeping patients clean and dry was part of their medical care for people in Plaintiff's bedridden condition. Plaintiff points out that Heritage Manor did not present any evidence or witnesses to testify that keeping a person who is at high risk for ulcers clean and dry is not health care under the LMMA. Therefore, that evidence went uncontroverted. He states that the injury occurred during or related to his health care, and the claim falls under the LMMA. In fact, the matter was submitted to the medical review panel, which rendered a decision that Ms. Edwards' actions fell below the standard of care.

Plaintiff further argues that the trial court erred in holding that Ms. Edwards committed an intentional tort and not an act of medical malpractice, since an intentional act can only occur when one of two things happens, i.e., either the actor consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct, or the actor knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Mere knowledge and appreciation of a risk does not constitute intent. He contends that because Ms. Edwards' act was not an intentional tort, his damages are covered by the LMMA and the prescriptive periods of the LMMA apply to the facts of this case. He states that prescription statutes are strictly construed against prescription and in favor of the claim being sought to be extinguished. If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. He asserts that under La. R.S. 40:1231.8(A)(2)(a), prescription is suspended by the filing of the request for review of a claim with the Patients' Compensation Fund ("PCF") until 90 days following notification, by certified mail, to the claimant or his attorney of the issuance of the opinion by the medical review panel. The statute states that the filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, all joint tortfeasors, including, but not limited to, health care providers to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.

Plaintiff also argues that recent jurisprudence has addressed the issue of applying prescription to medical malpractice claims and ordinary torts (nonmedical claims) and has expanded the scope of the medical malpractice suspension of prescription to include nonhealth care providers who are joint tortfeasors with qualified health care providers alleged to have committed nonmedical ordinary torts. For this reason, he contends that the LMMA prescription and suspension statute applies to all of his claims against Heritage Manor, medical and nonmedical. Because the lawsuit was filed in district court within 90 days of the last medical review panel opinion rendered in November 2014, he claims his suit has not prescribed and the trial court erred in finding that it had and in failing to allow the suit, based on other claims, to proceed.

Plaintiff further argues that the trial court erred in refusing to admit the DHH report he sought to introduce into evidence and cites La. R.S. 13:3715.3 for the proposition that although peer review findings by a public hospital are protected and deemed confidential under this law, state regulatory agencies are excepted under certain conditions. The statute states that when a party seeks to admit into evidence surveys, statements of deficiencies and related documents, any party to a civil action may request, and the court, using its discretion, may conduct a voir dire of the witness supporting the surveys and related documents to determine whether the deficiency is based on reliable evidence.

Heritage Manor argues that because Plaintiff's petition was prescribed on its face, he bears the burden of proof that his claim has not prescribed. It is the Plaintiff's burden to show that his claim benefitted from interruption or suspension of prescription or from some other exception to the applicable one-year prescriptive period. It claims that the salient issue before the court is whether the submission of Plaintiff's claim to the Division of Administration pursuant to La. R.S. 40:1231.8 resulted in a suspension of prescription and that it is his burden to prove his is a malpractice claim that falls under the LMMA.

Heritage Manor further argues that the trial court was correct when it asked if a punch to the face is medical treatment so that the LMMA applies to the situation at bar. It argues that the court must examine whether an act of negligence constitutes malpractice just because it occurs as part of the "handling of a patient" or during the "confinement" of a nursing home resident. It claims the altercation that occurred between Plaintiff and Ms. Edwards did not occur during treatment or medical care since she was only there to change his shirt and diaper.

Heritage Manor also argues that the trial court correctly found that Ms. Edwards' action in striking Plaintiff is an intentional tort and, as such, is excluded from coverage under the LMMA. It claims that the trial court's conclusion was reasonable; that because the act was deemed intentional, Plaintiff's petition is prescribed on its face; and that Plaintiff is required to prove that there was otherwise some interruption or suspension of prescription.

Heritage Manor further claims that the trial court correctly dismissed alternative theories of liability for Plaintiff's damages, which included attempting to force care upon him; Ms. Edwards' wearing of long acrylic fingernails; negligent hiring of Ms. Edwards, without which she would not have been in a position to punch Plaintiff in the face; and lack of supervision that might have prevented Ms. Edwards from punching Plaintiff. It contends that none of these theories convert the punch thrown by Ms. Edwards into the realm of medical treatment, and none constitute malpractice. It claims the alleged negligent hiring of Ms. Edwards is an administrative function and not a part of the delivery of care to patients and that none of these claims would qualify as medical treatment under the LMMA.

Heritage Manor further claims that, in regard to the trial court's failure to admit the DHH report into evidence, the statute cited by Plaintiff for the admission of the document makes the admission discretionary with the trial court by using the words "may be ... admissible" if the deficiencies have been admitted by the health care provider or have been declared valid after an appellate process has been followed by the administrative agency in charge of reviewing surveys. Because that process had not been followed at the time of the hearing on the exception, it contends that the trial court did not err in refusing to admit it into evidence and only allowing the report to be proffered.

Determination of coverage under the LMMA

The pertinent definitions of the LMMA are found in La. R.S. 40:1231.1(A)(9), (10), (13) and (22), respectively, as follows:

(9) "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.
(10) "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, nursing home, ... employed by, referred by, or performing work under contract for, a health care provider or other person already covered by this Part, registered or licensed practical nurse or certified nurse assistant ... or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.
(13) "Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.
(22) "Tort" means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

In Richard v. Louisiana Extended Care Centers, Inc. , 02-0978 (La. 1/14/03), 835 So.2d 460, the court stated as follows:

In the case of a nursing home, the nursing home resident is not always receiving medical care or treatment for any specific condition, but can always be said to be "confined" to the nursing home. However, in our view, it was not the intent of the legislature to have every "act ..., by any health care provider ... during the patient's ... confinement" in a nursing home covered by the MMA. La. R.S. 40:1299.41(A)(9) defining "health care" under the MMA) [.]

In Coleman v. Deno , 01-1517 (La. 1/25/02), 813 So.2d 303, the Louisiana Supreme Court stated that to be covered under the LMMA, the negligent act must be related to medical treatment. The court set forth a six-part test to determine whether a negligent act by a health care provider was covered under the LMMA, including the following:

(1) whether the particular wrong is "treatment related" or caused by a dereliction of professional skill, (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, ... (3) whether the pertinent act or omission involved assessment of the patient's condition, ... (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform, (5) whether the injury would have occurred if the patient had not sought treatment, and (6) whether the tort alleged was intentional.

In Campbell v. Nexion Health at Claiborne, Inc. , 49,150 (La. App. 2 Cir. 10/1/14), 149 So.3d 436, this court stated:

A "tort" is defined as "any breach of duty or any negligent act or omission proximately causing injury or damage to another." La. R.S. 40:1299.41(A)(22). Richard v. Louisiana Extended Care Centers, Inc. , 02-0978 (La. 1/14/03), 835 So.2d 460.
While acts of malpractice can occur in the rendering of professional services, the patient must be in the process of receiving "health care" when the negligent rendition of professional services occurs. Richard , supra .... Nursing home residents present a special case, as the resident is not always receiving medical care or treatment, but is always confined to the facility. Not all negligent acts by a nursing home constitute medical malpractice. Richard , supra .
As the LMMA serves to limit the rights of tort victims, its coverage should be strictly construed. Richard, supra .
* * *
In Eldridge v. Heritage Manor, L.L.C. , 06-718 (La. App. 3 Cir. 11/2/06), 942 So.2d 743, the plaintiffs denoted their claims as negligence, breach of contract for services to be provided, breach of duties and violations of rights. The patient was described as "totally disabled due to a stroke." Specific allegations included, among others, that the defendant failed to properly care for and treat their patient; failed to implement an adequate care plan to meet their patient's needs; failed to provide adequate number of trained nursing staff; failed to properly monitor and respond to changes in the patient's condition, provide that information and change of status to the family and physician; failed to obtain and provide therapy and assistance devices and safety; and failed to adhere to quality care standards and allocate proper funding for care and services to meet the needs of their patients. The plaintiffs argued that some claims were purely custodial and, therefore, outside of the LMMA. The Eldridge court found that the claims fell under care, treatment and assessment so as to require presentation to a medical review panel. It was noted that expert medical testimony would be needed to determine if the standard of care was breached with respect to care and treatment, as the actions involve treatment modalities and the need therefor. Finally, the actions involved the assessment, or lack thereof, of the resident's condition.

Regarding whether Ms. Edwards' action was an intentional act as envisioned by the LMMA, we note that in White v. Glen Retirement Sys. , 50,508 (La. App. 2 Cir. 4/27/16), 195 So.3d 485, this court stated:

Regarding intentional torts, the meaning of intent is that the person who acts either 1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or 2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Act is distinguished from intent in that the word act is used to denote an external manifestation of the actor's will which produces consequences. That act must proceed from volition of the actor. 1 William E. Crawford, Tort Law, § 12:4 in 12 Louisiana Civil Law Treatise (2d ed. 2009). For example, terms such as "should have known" may raise issues of negligence or gross negligence, but do not amount to "intentional" as that term is used in the Worker's Compensation Act. Id., citing Adams v. Time Saver Stores, Inc. , 615 So.2d 460 (La.App. 4th Cir.1993), writ denied , 617 So.2d 910 (La.1993).

Heritage Manor argues that Louisiana appellate courts have consistently held that changing a diaper is not medical treatment and cites Henry v. W. Monroe Guest House, Inc. , 39,442 (La. App. 2 Cir. 3/2/05), 895 So.2d 680, and Womack v. Autumn Leaves Nursing & Rehab. Ctr., L.L.C. , 39,710 (La. App. 2 Cir. 5/11/05), 902 So.2d 1280. Those cases can be distinguished from the case at bar.

In Henry , supra, plaintiffs argued that their cause of action arose out of the nursing home's failure to check and change Ms. Henry's adult diaper in a timely manner, causing her a loss of personal dignity. The court specifically noted that although the defendants urged that the case was about decubitus ulcers, it accepted the plaintiffs' allegations and noted that plaintiffs presented a separate request for a medical review panel to discuss all malpractice aspects of Ms. Henry's case. Therefore, the appeal only addressed plaintiffs' dignity claims. The court stated as follows:

First, we find that changing a diaper is not medical treatment. Many non-medical persons have done it without difficulty or specialized medical training. Second, no medical expert is needed to determine whether a diaper is in need of a changing. Again, we are not discussing causation of decubitus ulcers, but instead, the personal dignity of a nursing home resident. Third, a medical assessment of the resident's condition was not necessary as Ms. Henry's care plan called for a diaper change every two hours, or as needed. This court has previously held that complaints are not treatment related when the failure of the nursing home arises from a failure to abide by the patient care plan ... Fourth, changing a diaper is something routinely performed by nurses aides, and not under the direction of a physician. Fifth, Ms. Henry would have suffered a loss of dignity for having dirty diapers, regardless of her residence in the nursing home. Sixth, this factor is not applicable in this case. Under this analysis, we find that plaintiff's complaints fall under the NHRBR [Nursing Home Residents Bill of Rights], and not the MMA.

Heritage Manor admits that the claim in Henry , supra , was that the patient suffered a loss of dignity by the failure of the nursing home to change dirty diapers, but argues that the analysis is the same and is still applicable to the question of whether changing a diaper is related to medical treatment such that an intentional punch to the face can even be said to have occurred during treatment. Womack , supra , presented the same issues as those in Henry , supra , i.e., that the dignity of the person whose diaper was not changed was at issue, and that issue was not related to health care. Thus, this court held in those two cases that claims of abuse and negligence were not medical treatment related and fell under the NHRBR rather than the LMMA.

The facts of this case can be distinguished from those in Henry , supra , and Womack , supra . In Henry, the court specifically stated that the aspects of the diaper change issue which could fall under the LMMA had been referred to the medical review panel and that only that portion of the case dealing with patient dignity was being addressed at that time. Applying the factors found in Coleman , supra , in the case at bar, the particular wrong, i.e., injury during the changing of a diaper which was necessary to prevent ulcers in a paralyzed patient, was medical treatment related and/or caused by a dereliction of professional skill. Expert medical evidence was necessary to determine whether the appropriate standard of care was breached as a result of the failure to safely change the patient's diaper when the point of changing him was to prevent decubitus ulcers. The pertinent act or omission involved assessment of the patient's condition. The incident occurred within the scope of activities which the nursing home and Ms. Edwards were licensed to perform. Ms. Edwards' act in striking Plaintiff does not meet the definition of an intentional act under White , supra , since she did not intend the consequences of her act, but, instead, simply reacted to the sudden action of Plaintiff resisting the care she was giving him. It was more in the nature of gross negligence rather than an intentional act and, thus, is susceptible to a claim for medical malpractice.

The facts of the case at bar lead us to conclude that the order to keep Plaintiff clean and dry was related to his health care and necessary, specifically, to his recovery. Plaintiff had a stroke which left him paralyzed on his left side, incontinent and subject to developing decubitus ulcers. Had Heritage Manor's employee not followed Dr. Hernandez's orders and Plaintiff had developed the ulcers as a result of the employee's failure to perform her duty, certainly that would have resulted in a medical malpractice claim under the LMMA. The fact that the employee was attempting to perform her duty and render medical care pursuant to a treatment plan when she reacted badly to being struck by a patient brings that act under the protection of the LMMA.

For the foregoing reasons, the assignments of error related to designation of the action as an intentional tort and the determination of coverage of that action under the LMMA are found to have merit. We find that the action of Ms. Edwards is subject to review by the medical review panel and qualifies as medical malpractice in the definition found in the LMMA.

Prescription

Plaintiff argues that in a malpractice case, the complaint or petition filed with the PCF is the pleading that determines whether the claim is prescribed on its face. The petition filed in the district court after a medical review panel process is not the pleading that determines the burden of proof. He asserts that his petition was timely filed because, under the LMMA, specifically La. R.S. 40:1231.8, prescription is suspended by the filing of the request for review of the claim and that he had until 90 days after the rendering of the medical review panel's decision to file suit against Heritage Manor. The medical review panel's supplemental opinion was rendered on November 3, 2014, finding that Ms. Edwards was Heritage Manor's employee when the conduct occurred, and her conduct failed to comply with the appropriate standard of care. He filed his suit on December 2, 2014, within the time period allowed by law under the LMMA.

La. R.S. 9:5628(A) concerns the prescriptive period for medical malpractice claims and states in pertinent part as follows:

No action for damages for injury or death against any physician, ... hospital or nursing home duly licensed under the laws of this state, ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

La. R.S. 40:1231.8(A)(2)(a) provides for suspension of the prescriptive period in a medical malpractice action and states, in part:

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.

In Wells v. Zadeck , 11-1232 (La. 3/30/12), 89 So.3d 1145, the court stated that the rules of prescription are designed to prevent old and stale claims from being prosecuted. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. , citing Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo , supra . In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations contained therein are accepted as true. Evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931.

In LeBreton v. Rabito , 97-2221 (La. 7/8/98), 714 So.2d 1226, the court stated that the filing of a medical malpractice claim with a medical review panel triggers the suspension of prescription specially provided by the LMMA, rather than the interruption of the liberative prescriptive period generally provided for in the Louisiana Civil Code.

By virtue of La. R.S. 40:1231.8(A)(2)(a), the filing of a request for review of a claim "shall suspend the running of prescription against all joint and solidary obligors ... to the same extent that prescription is suspended against the party or parties that are the subject of the request for review." This sentence indicates that prescription is suspended as to all claims against the party that are the subject of the request for review. In the case at bar, Plaintiff's suit details all causes of action against Heritage Manor and was filed within 90 days of the issuance of the opinion of the medical review panel and, therefore, was timely.

Accordingly, this assignment of error has merit.

Admissibility of the DHH Survey/Investigation Report

Plaintiff argues that the trial court committed legal error in not allowing the DHH report to which RN Furguson was to testify at the hearing on the exception of prescription to be admitted into evidence. Instead, the trial court allowed him to proffer the report.

Heritage Manor claims that the trial court properly refused to admit the DHH report into evidence because such admission is discretionary and the proper foundation must be laid prior to any report's admission.

Based on the foregoing discussion concerning the exception of prescription, which was the basis for the appeal in this matter, we pretermit discussion of the trial court's ruling allowing the proffer of the DHH report. That issue has no bearing on the issue of prescription, and the parties have an adequate remedy by review on appeal of the final judgment on the merits.

This assignment of error is without merit.

CONCLUSION

Based on the foregoing, the judgment of the trial court sustaining the exception of prescription in favor of Defendant Heritage Manor Stratmore Nursing & Rehabilitation Center, L.L.C., and against Plaintiff John Mack Evans, Sr., and dismissing all claims, is hereby reversed, and judgment is entered denying the exception. The matter is remanded for further proceedings consistent with this decision. Costs of appeal are assessed to Defendant Heritage Manor Stratmore Nursing & Rehabilitation Center, L.L.C.

REVERSED AND REMANDED.

      Although the style of Plaintiff's petition names Defendant and "et al.," it is unclear from the record who else is named as a defendant. The petition names only the Heritage Manor facility as a defendant.

      Formerly cited as La. R.S. 40:1299.47(A)(2)(a) prior to August 1, 2016.


source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    Bernice AMOS and Roshunda Amos, Plaintiffs-Appellees v. Dorothy TAYLOR and Louisiana Farm Bureau Casualty Insurance Company, Defendants-Appellants
    No. 51,595-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    COTTON, BOLTON, HOYCHICK & DOUGHTY, L.L.P. By: John B. Hoychick, Counsel for Appellants
    THE LAW FIRM OF EDDIE CLARK & ASSOCIATES, L.L.C. By: Eddie M. Clark, Counsel for Appellees
    Before PITMAN, COX, and BLEICH (Pro Tempore), JJ.
   COX, J.

The defendants, Dorothy Taylor and Louisiana Farm Bureau Casualty Insurance Company ("Taylor"), appeal from a judgment in favor of the plaintiffs, Bernice Amos ("Bernice") and Roshunda Amos ("Roshunda"), finding Taylor caused an accident with Bernice after she entered the intersection while her traffic light was red. The trial court found Taylor 100% responsible for the accident. For the following reasons, we affirm in part and reverse in part the ruling of the trial court.

FACTS

On January 4, 2015, Bernice Amos was driving her 2000 Nissan Altima eastbound on Ruffin Drive in Monroe, Louisiana. Her daughter, Roshunda, was a passenger in the vehicle. Taylor was traveling northbound on Highway 165. The automobile collision occurred on Highway 165 at the intersection of Highway 165 and Ruffin Drive.

According to Bernice, Taylor proceeded through the intersection on a red light and struck her vehicle. Bernice stated she was driving eastbound on Ruffin Drive, with the right of way and a green traffic light. As a result of the collision, Bernice and Roshunda claimed they sustained serious injuries to their persons, including injuries to their neck, back, and shoulders.

According to Taylor, Bernice traveled through the intersection of Ruffin Drive and into the northbound lanes of Highway 165, striking the side of her vehicle. Taylor contended that Bernice had a red traffic light. The accident report stated Bernice was proceeding to cross Highway 165 South to turn onto Highway 165 North when she struck the driver's side of Taylor's vehicle. Bernice and Roshunda told the officer they were not injured at the time. Both Bernice and Roshunda told the officer Bernice had the green light. However, Taylor told the officer she had the green light and was struck by Bernice.

A deputy, Brian Hanks, told the officer he was at a red light in the inside, southbound lane of Highway 165 when he saw Bernice strike Taylor's vehicle. The deputy stated he was unable to say whether the traffic light for Bernice or Taylor was red or green at the time of the accident. Due to the conflicting stories of the drivers, the officer was unable to determine which vehicle was at fault, and no ticket was issued.

After hearing the evidence and arguments at trial, the trial court found Taylor ran the red light and crashed into Bernice's vehicle. The trial court ordered a judgment in favor of Bernice for 6 months of treatment in the amount of $7,945 and for general damages in the amount of $14,000. The trial court additionally found in favor of Roshunda for 2 months of treatment in the amount of $3,785 and for general damages in the amount of $5,000. All attorney fees and court costs were to be paid by Taylor and Louisiana Farm Bureau.

LAW

The appellant raises two issues on appeal. The first issue is whether the award of attorney fees was proper. The second issue is whether the allocation of fault was correctly attributed to Taylor rather than Bernice.

Louisiana courts have held that attorney fees may not be awarded to a successful litigant unless specifically provided for by statute or contract. Campbell v. Melton , 2001-2578 (La. 5/14/02), 817 So.2d 69 ; Emond v. Tyler Bldg. & Constr. Co. , 438 So.2d 681 (La. App. 2 Cir. 1983). Furthermore, when items of special damage are claimed, they shall be specifically alleged. La. C.C.P. art. 861. Attorney fees are special damages that must be alleged in the petition. Lanier Bus. Prod., Inc. v. First Nat'l Bank of Rayville , 14,211 (La. App. 2 Cir. 8/18/80), 388 So.2d 442. Neither party has alleged attorney fees are appropriate in this case, and both have agreed that the plaintiffs are not entitled to attorney fees as part of the damages.

In an action for damages where a person suffers injury, death, or loss, the percentage of fault of all persons causing or contributing to the loss shall be determined. La. C.C. art. 2323. The trial court is required to compare the relative fault of the parties in assessing liability. In allocating fault, the trial court must consider the nature of each party's conduct and the causal relationship between that conduct and the damages claimed. Watson v. State Farm Fire & Cas. Ins. Co. , 469 So.2d 967 (La. 1985).

The allocation of fault is a question of fact for the trial court to decide. Solomon v. American Nat'l Prop. & Cas. Co. , 49,981 (La. App. 2 Cir. 9/4/15), 175 So.3d 1024 ; Underwood v. Dunbar , 628 So.2d 211 (La. App. 2 Cir. 1993), writ denied , 94-0026 (La. 2/25/94), 632 So.2d 767. A trial court's factual findings will not be disturbed unless they are manifestly erroneous or clearly wrong. Solomon, supra. Where conflict exists in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO , 549 So.2d 840 (La. 1989) ; Mosley v. Griffin , 50,478 (La. App. 2 Cir. 2/24/16), 191 So.3d 16. After reviewing the entire record, the appellate court may reverse the trial court's findings if there is no reasonable factual basis for the findings and the record establishes the trial court was manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transportation and Development , 617 So.2d 880 (La. 1993) ; Solomon, supra .

The Louisiana Supreme Court has stated, "Deference should be accorded to the trial court's decision, even if that decision is of less than ideal clarity, if the trial court's path may be reasonably discerned, such as when its findings, reasons and exercise of discretion are necessarily and clearly implied by the record." Leal v. Dubois , 00-1285 (La. 10/13/00), 769 So.2d 1182 ; Bloxom, supra .

The accident between Bernice and Taylor occurred in an intersection controlled by traffic signals. The relevant portions of La. R.S. 32:232 provides:

(1) GREEN indication:
(a) Vehicular traffic facing a circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But vehicular traffic, including vehicles turning right or left, shall stop and yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.
...
(3) Steady RED indication:
(a) Vehicular traffic facing a steady circular red signal alone shall stop at a clearly marked stop line, or if none, then before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection, and shall remain standing until an indication to proceed is shown except as provided in Subparagraph (c) of this Paragraph.

A motorist with a green signal when approaching an intersection cannot depend exclusively on a favorable light. The motorist has a duty to watch for vehicles already in the intersection when the light changed. This duty does not extend to watching for traffic that has not yet entered the intersection. Mosely, supra . In order to preempt an intersection, the motorist must show that he made a lawful entry, at a proper speed, after ascertaining that oncoming traffic was sufficiently removed to permit a safe passage and under the bona fide belief and expectation that he can negotiate a crossing with safety. He must show that he entered the intersection at a proper speed and sufficiently in advance of the vehicle on the intersecting street to permit him to cross without requiring an emergency stop by the other vehicle. Mosley, supra ; Gardner v. State Farm Mut. Auto. Ins. Co. , 43,499 (La. App. 2 Cir. 9/17/08), 996 So.2d 320.

DISCUSSION

The appellant argues under their first assignment of error that the trial court erred in awarding attorney fees to the plaintiffs. As stated above, Louisiana courts have held that attorney fees may not be awarded to a successful litigant unless specifically provided for by statute or contract. When items of special damage are claimed, they shall be specifically alleged in the petition. Attorney fees are special damages. The plaintiffs did not specifically allege attorney fees in their petition. Both parties agree that attorney fees are inappropriate in this case and that the plaintiffs are not entitled to attorney fees as part of the damages.

After reviewing the record, we respectfully reverse the trial court's award of attorney fees to the plaintiffs. Both parties agree the trial court's award of attorney fees was in error. The award of attorney fees in this tort suit was not provided for in contract or statute, as provided by law. Thus, there was no legal basis for the award.

The appellant argues in their second assignment of error that the allocation of fault was incorrectly attributed to Taylor rather than Bernice. We find the trial court did not commit manifest error in assigning 100% of the fault to Taylor and finding Bernice not responsible. This case presents conflicting testimony between the parties. The trial court is in the best position to determine credibility.

The appellant asserts the usual deference on appeal should not be given because the trial court's judgment does not articulate the theory or the evidentiary facts upon which the conclusion is based, citing Bloxom v. Bloxom , 512 So.2d 839 (La. 1987). This is an exceptional remedy only available when the trial court's "findings, reasons and exercise of discretion are [not] necessarily and clearly implied." Milstead v. Diamond M Offshore, Inc. , 95-2446 (La. 7/2/96), 676 So.2d 89. The record clearly implies the trial court's path in determining Bernice had the green light and Taylor had the red light. Based on the evidence, the trial court's judgment was reasonable in determining Bernice had the green light.

In ruling in favor of Bernice, the trial court found her testimony to be credible. We will not disturb the trial court's evaluation of credibility. Bernice testified she had the green light when she entered the intersection. Bernice said she did not see Taylor's vehicle, but did see Deputy Hanks's vehicle stopped in the Highway 165 southbound lane. Roshunda corroborated Bernice's testimony that her light was green and Deputy Hanks was stopped in his lane. Bernice was able to cross the southbound lanes of Highway 165 without incident before the collision occurred in the northbound lanes.

Bernice testified that she looked for vehicles in the intersection before attempting to cross Highway 165. She stated she did not see Taylor's vehicle while watching for traffic. Bernice testified she was moving at 25 miles per hour at the time she crossed Highway 165 and would not have crossed if Deputy Hank's traffic light was green.

The Traffic Signal Inventory could also be used to corroborate Bernice's testimony that her light was green. Natalie Sistrunk, a traffic engineer with the Louisiana Department of Transportation, testified as to the possibility of Taylor having a green signal light. She stated that if Deputy Hank's light was red and neither party can recall a vehicle present in the left turn lane, then Taylor's signal light would also be red.

After hearing testimony and reviewing the evidence, the trial court found Taylor's traffic light was red. The law requires traffic with a red signal light to stop before entering the intersection and to remain stopped until given an indication to proceed. According to the trial court's findings, Taylor did indeed run the red light and crashed into Bernice.

After a complete review of the record, we find the trial court properly compared the plaintiff's conduct and the defendant's conduct when assessing liability. The facts and testimony created a reasonable basis for the trial court to rule Taylor was 100% responsible for causing the accident by running the red light.

CONCLUSION

For the reasons stated above, we find the trial court erred in awarding attorney fees to Bernice and Roshunda. We do not find the trial court committed legal error in determining Taylor caused the accident. Absent manifest error, the trial court's finding should not be overturned. This was a credibility judgment made by the trial court in determining which driver had the green light and which driver had the red light. We cannot find any manifest error in the trial court's determination that Taylor had a red light and was 100% responsible for the accident. We respectfully reverse the award of attorney fees and affirm the ruling of the trial court in all other respects. Costs associated with this appeal are assessed to the appellants.

AFFIRMED IN PART, REVERSED IN PART.

PITMAN, J., concurs with written reasons.

BLEICH, J. (Pro Tempore), concurs in the result.

PITMAN, J., concurs.

Louisiana follows the "American Rule" with regard to the award of attorney fees. Each party pays its own attorney fees, except in two circumstances. The first is if a contract specifically includes provisions for attorney fees to be awarded to the opposing party. The second is if a statute specifically provides for the award of attorney fees to the opposing party.

The case before us deals with a collision of two cars. There is no contract provision or statute that allows for the award of attorney fees in this instance. Accordingly, even if the plaintiffs had requested the award of attorney fees as special damages in their petition, there is no provision for this in Louisiana law.

I agree with affirming the trial court in finding the defendant at fault in causing the collision. I also agree that the award of attorney fees was improper, not because the pleadings did not request them, but because there is no provision for the award in Louisiana law.

For the reasons stated above, I concur in the result.


author: BROWN, CHIEF JUDGE

text:
    Grenda L. SMITH, Plaintiff-Appellee v. GRAPHIC PACKAGING, INC., Defendant-Appellant
    No. 51,590-WCA
    Court of Appeal of Louisiana, Second Circuit.
    September 27, 2017
    JUGE, NAPOLITANO, GUILBEAU, RULI, and FRIEMAN By: Keith E. Pittman, Christoper T. Whelen, Counsel for Appellant
    SUZETTE T. MURPHY, Counsel for Appellee
    Before BROWN, MOORE, and COX, JJ.
   BROWN, CHIEF JUDGE

This is a workers' compensation case. Defendant, Graphic Packaging, Inc., has appealed from a judgment awarding claimant, Grenda Smith, penalties in the amount of $2,000 and attorney fees in the amount of $8,000 based upon the WCJ's finding that defendant failed to reasonably controvert claimant's request for neuropathic pain cream. For the reasons set forth below, we affirm and amend to award additional attorney fees.

FACTS AND PROCEDURAL HISTORY

On August 14, 2012, claimant, Grenda Smith, was injured while working for defendant, Graphic Packaging, Inc. While she was removing a heavy cylinder from a rack, the cylinder rolled off and fell, crushing Smith's right foot and causing severe injuries. Smith underwent emergency surgery and received further treatment from Dr. Timothy Spires, an orthopedic surgeon. Thereafter, Smith was referred to Dr. J. Hardy Gordon, a pain management physician at Louisiana Pain Care. On her first visit, on August 6, 2013, with Dr. Gordon, Smith was diagnosed with neuralgia and prescribed Ultram, Lyrica, and neuropathic cream.

Defendant authorized all of the prescriptions, including the neuropathic cream. Near the end of 2013, defendant required further documentation from Dr. Gordon before reauthorizing the cream. Dr. Gordon submitted the requested information. By letter dated November 6, 2013, Coventry Workers' Comp Services notified Dr. Gordon that "[on] behalf of GALLAGHER BASSETT [defendant's third party workers' comp administrator], the [neuropathic cream] had been reviewed" and "has been determined to be medically necessary ." A year later, in November 2014, before reauthorizing claimant's prescriptions, defendant sent a workers' compensation nurse to discuss claimant's medications with Dr. Gordon; the two specifically discussed Dr. Gordon's justification for the neuropathic cream, which was that the cream caused significantly less side effects and allowed Smith to perform activities of daily living and work.

On March 29, 2016, apparently in response to a request from claimant's pharmacy for continued authorization, defendant sent a letter to Dr. Gordon refusing to authorize further refills of two of claimant's prescriptions, the neuropathic cream and Ultram. This denial was based upon the opinion of Kamran Shabtai, M.D., M.P.H., Occupational Medicine. Dr. Shabtai only reviewed for the purposes of his determination an office visit record documenting claimant's appointment with Dr. Gordon on November 23, 2015, and a health insurance claim form dated December 1, 2015, submitted by Dr. Gordon. Also noted by Dr. Shabtai was that he made one attempt to speak with Dr. Gordon leaving a voicemail at 3:25 p.m. on March 25, 2016. According to Dr. Shabtai, the principal reason for denying approval for the refill of the neuropathic cream was that "the proposed treatment plan is not consistent with our clinical review criteria [set forth in Chapter 21. Pain Medical Treatment Guidelines of the Medical Guidelines]." Additionally, Dr. Shabtai stated that "compounded topical analgesics are not known for their safety and efficacy" and "neuropathic cream is not medically necessary at this time." Claimant and her attorney received the denial on April 4, 2016.

Counsel for claimant made a written demand upon defendant for authorization of the neuropathic cream on April 14, 2016, attaching additional documentation in support of the medical necessity of the cream. Counsel for claimant filed a 1009 appeal with the OWC Medical Director on April 18, 2016. OWC Director Sheral Kellar notified claimant on April 19, 2016, that her 1009 appeal was rejected because it was untimely.

On May 19, 2016, Smith filed a 1008 form seeking authorization of the neuropathic cream prescribed by Dr. Gordon and an award of penalties, attorney fees, costs, and interest. Claimant asserted that the neuropathic cream did not fall under the Medical Treatment Schedule and, as such, was not required to be approved by the medical director via the procedures outlined in La. 23:1203.1 and Part I, Subpart 2, Chapter 27 of Title 40 of the Louisiana Administrative Code. However, if such approval was required, claimant contended that her 1009 appeal with the OWC was timely following her receipt of defendant's denial of authorization of the prescription cream.

On July 19, 2016, defendant filed an answer, denying that claimant was entitled to the neuropathic pain cream as it was not medically necessary and that claimant is not entitled to penalties and attorney fees. On July 21, 2016, defendant deposed Dr. Gordon, and on the next day, July 22, 2016, defendant, through its workers' compensation adjuster, issued a letter stating that it had approved the neuropathic cream as prescribed by Dr. Gordon.

A few days before the July 25, 2016, hearing in this matter, defendant filed an exception of subject matter jurisdiction. The WCJ took up this exception first, found it to be without merit, and then, after defense counsel stated that the only evidence it would be producing would be the adjuster's letter of July 22, 2016, indicating their approval of claimant's request for the neuropathic cream, the WCJ stated that the hearing would be limited to evidence on claimant's request for penalties and attorney fees. The WCJ rendered its judgment, finding that the neuropathic cream was reasonable and necessary under the Workers' Compensation Act, and that Smith was entitled to an award of $2,000 in penalties and $8,000 in attorney fees and costs. Defendant has appealed, and claimant has answered the appeal, seeking an award of attorney fees and costs associated with work done on this appeal.

DISCUSSION

Denial of Exception of Subject Matter Jurisdiction

According to defendant, the WCJ erred in denying its exception of subject matter jurisdiction. The basis for the WCJ's ruling was that there was subject matter jurisdiction because the Medical Treatment Schedule does not apply to prescription medications and, therefore, claimant was not required to follow the procedures set forth in La. R.S. 23:1203.1 and Title 40 of the Louisiana Administrative Code.

We find no error in the WCJ's denial of defendant's exception of subject matter jurisdiction, but we do so for the reasons set forth below.

La. R.S. 23:1310.3(F) provides for OWC jurisdiction for all "claims or disputes arising out of" the Workers' Compensation Act. Broussard Physical Therapy v. Family Dollar Stores, Inc. , 08-1013 (La. 12/02/08), 5 So.3d 812 ; Brookshire Grocery Co. v. Musculoskeletal Institute of Louisiana, A.P.M.C. , 50,208 (La. App. 2 Cir. 05/18/16), 195 So.3d 528.

La. R.S. 23:1203(A) provides in part that in every workers' compensation case, "the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal." As noted by the supreme court in Church Mutual Insurance Co. v. Dardar , 13-2351 (La. 05/07/14), 145 So.3d 271, 283, no changes to the language of La. R.S. 23:1203(A) were effected with the enactment of La. R.S. 23:1203.1 and the promulgation of the medical treatment schedule. Rather, the language of La. R.S. 23:1203 and the obligation set forth therein remains unchanged. Medical necessity remains the touchstone for an employer's obligation to pay for medical care.

Louisiana Revised Statute 23:1203.1 provides in part:

(I) After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203 et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it is demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances. (Emphasis added).
(J) (1) After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection 1 of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers' compensation administration medical director or associate medical director on a form promulgated by the director. The medical director or associate medical director shall render a decision as soon as practicable, but in no event, not more than thirty calendar days from the date of filing.

In the instant case, defendant approved as medically necessary the prescription neuropathic cream for more than three years. Implicit in this determination was that the cream was care, services, and treatment "in accordance with the medical treatment schedule." As pointed out by the supreme court in Church Mutual Insurance Co., supra, the language of La. R.S. 23:1203(A) and the obligation set forth therein remains unchanged: medical necessity remains the touchstone for an employer's obligation to pay for medical care. According to the supreme court, La. R.S. 23:1302 and 23:1203.1 are not "irreconcilably inconsistent and repugnant." Id. at 284. Rather, they are laws on the same subject matter which must and can be interpreted in reference to each other. Id. The court further wrote in Church Mutual Insurance Co., supra at 284-5, :

With the express intent of delivering health care services to injured employees "in an efficient and timely manner," La. R.S. 23:1203.1 adopts evidence-based medicine as the guidepost for assessing whether the medical care required to be provided under La. R.S. 23:1203 is necessary. To that end, La. R.S. 23:1203.1 requires the promulgation of a medical treatment schedule, which consists of a list of preauthorized procedures, administratively developed and approved according to criteria set forth by the statute. These preauthorized procedures provide a benefit and advantage to injured workers and their treatment providers who are relieved of the burden of establishing the medical necessity of the preauthorized procedures and, at the same time, impose a clear-cut obligation on employers. By their terms, La. R.S. 23:1203.1 and the medical treatment schedule do not exclude any particular care. Instead, these provisions represent and reflect a rational policy choice by the legislature to confer authority on the Director of the OWC, with the assistance of the medical director, to determine in advance the medical necessity for certain care, in particular circumstances, in order to avoid case-by-case disputes and variations and to streamline the process. As regards medical procedures not included in the medical treatment schedule and, thus not presumptively deemed necessary, claimants can overcome the predetermination by seeking review and/or a variance from the medical director of the OWC. And, in the event a variance is denied, claimants have resort to another administrative level of review conducted by the OWC judge. In this way, La. R.S. 23:1203.1 and the medical treatment schedule create rebuttable presumptions as to the necessary treatment required by La. R.S. 23:1203(A)....

Louisiana R.S. 23:1203.1 and the medical treatment schedule it implements, while changing the process for determining medical necessity by making the OWC judge's determination of necessary medical treatment secondary to the initial resolution of a medical benefit dispute to the medical treatment schedule, and thereafter the medical director, do not deprive claimants of any right to seek medically necessary care or alter the ongoing substantive obligation of employers to pay for such care under La. R.S. 23:1203(A). While referencing the substantive right conferred by La. R.S. 23:1203(A), La. R.S. 23:1203.1 does not alter it. Rather, it facilitates the implementation of that right.

In this case, it was neither claimant nor her treating physician who initiated the request for additional authorization of the neuropathic cream. Instead, claimant's pharmacy required further authorization from defendant for the three medications Dr. Gordon had been prescribing for Smith. Defendant denied the necessary approval, having determined that the neuropathic cream was not medically necessary based upon the recommendation of their reviewing physician, who looked at one medical report and one insurance form (but none of the other documentation previously relied upon by defendant in determining the cream's medical necessity), and without examining claimant or speaking with her treating physician, Dr. Gordon.

We find this case to be analogous to Black v. CenturyLink , 50,572 (La. App. 2 Cir. 04/13/16), 195 So.3d 28, writ denied , 16-0905 (La. 09/06/16), 204 So.3d 1000. In Black , the claimant, who had upper extremity pain caused by chronic regional pain syndrome (CRPS) and carpal tunnel syndrome (CTS), sought review of the WCJ's determination that she had not proven by clear and convincing evidence that the decision of the medical director (which denied her request for topical cream to treat her neuropathic hand pain as the cream did not "meet established treatment standards of medical necessity") was not in accordance with the medical treatment guidelines (MTG). This Court in Black, supra at 32-33,, reviewed the pertinent subchapters of the MTG on chronic pain disorders and chronic regional pain syndrome, and observed:

The case sub judice presents the very type of dispute that the MTG were designed to prevent. See Church Mutual Insurance Co. v. Dardar, supra . Both Dr. Acurio and Dr. Mosura determined that Ms. Black's pain was caused by DRPS/RSD and CTS, and Dr. Mosura prescribed the topical cream to treat her pain. Although the MTG do not include topical creams as nonoperative therapeutic procedure for patients with CTS, the MTG specifically list "topical medications" as an authorized treatment for CRPS. La. Admin. Code, title 40, part I, § 2131(C)(6)(d)(v)(a). The MTG's inclusion of the statement that "no literature addressing its [i.e., topical medication] use in patients with CRPS" does not negate the inclusion of topical medications as a nonoperative therapeutic treatment for patients with CRPS. Further, the MTG's inclusion of ketamine and capsacin as types of topical medications is an illustrative list, not an exclusive list. Therefore, the WCJ erred in not finding that the MTG "pre-authorized" the prescription of the topical cream to treat Ms. Black's pain caused by CRPS.

In this case, the principal reason given by defendant in support of its refusal to reauthorize the neuropathic cream was that this treatment was "not consistent with the clinical review criteria in Chapter 21. Pain Medicine Treatment Guidelines of the Medical Guidelines." However, because claimant's diagnosis is neuralgia/complex regional pain syndrome (CRPS) (formerly referred to as reflex sympathetic dystrophy or RSD), the specific provisions of the Medical Guidelines applicable are found in Subchapter B, §§ 2121 et seq. As noted by this Court in Black, supra , the MTG specifically list topical medications (such as the neuropathic cream prescribed by Dr. Gordon) as an authorized treatment for CRPS. This Court further found in Black that the WCJ's failure to find that the neuropathic hand cream prescribed for the claimant was preauthorized by the MTG was erroneous. Id. at 33. As held by the supreme court in Church Mutual Insurance Co., supra at 285, implementation of the MTG does not alter the employer's obligation to timely provide the injured employee with all necessary medical treatment pursuant to La. R.S. 23:1203(A).

Defendant's denial of the pharmacy's request for reauthorization of Smith's prescriptions was mailed to Dr. Gordon on March 29, 2016, but was not received by claimant until April 4, 2016. Claimant's 1009 form requesting review of defendant's denial of continued authorization of the prescription cream, which was received by the OWC director on April 18, 2016, was deemed untimely and rejected by the OWC, notwithstanding the fact that the denial by defendant was a letter of non-certification of medical necessity in response to a pharmacy request for continued authorization for prescriptions, not in response to a 1010 filed by claimant's medical provider. Smith's 1008 form, which requested review of the OWC director's rejection of her 1009 form, as well as review of defendant's determination that the neuropathic cream it had deemed medically necessary for approximately three years was no longer "consistent with [defendant's] clinical review criteria," clearly set forth a "claim or dispute arising out of" the Workers' Compensation Act. See Broussard Physical Therapy, supra ; Brookshire Grocery Co., supra .See also La. Const. Art. 5, § 16 (A);

La. R.S. 23:1310.3(F) ; La. R.S. 23:1203.1(K). We find no error in the WCJ's determination that subject matter jurisdiction existed in this case.

Attorney Fees and Penalties

In its second assignment of error, defendant urges that the WCJ erred in awarding penalties and attorney fees.

Louisiana R.S. 23:1201(F) governs the assessment of penalties and award of attorney fees for an employer's or insurer's failure to authorize medical treatment. Louisiana R.S. 23:1201(F)(2) provides that Subsection (F) is inapplicable if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. Arrant v. Wayne Acree PLS, Inc. , 51,238 (La. App. 2 Cir. 05/02/17), 218 So.3d 737.

In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Id. ; Davenport v. Foster Farms, L.L.C. , 46,430 (La. App. 2 Cir. 07/13/11), 69 So.3d 1263, writ denied , 11-1781 (La. 10/14/11), 74 So.3d 213 ; Koenig v. Christus Schumpert Health System , 44,244 (La. App. 2 Cir. 05/13/09), 12 So.3d 1037 ; Howard v. Holyfield Construction, Inc. , 38,728 (La. App. 2 Cir. 07/14/04), 878 So.2d 875, writ denied , 04-2303 (La. 01/07/05), 891 So.2d 684. Reasonably controverting a claim means that the employer or insurer has sufficient factual and medical information to reasonably counter that provided by the claimant. Arrant, supra; Maxwell v. Care Solutions, Inc. , 50,088 (La. App. 2 Cir. 09/30/15), 179 So.3d 650, writ denied , 15-1954 (La. 11/30/15), 184 So.3d 36 ; Massey v. Fresenius Medical Care Holding , 49,407 (La. App. 2 Cir. 11/19/14), 152 So.3d 1019, writ denied , 14-2650 (La. 03/06/15), 160 So.3d 1290. The crucial inquiry in determining whether to impose penalties and attorney fees is whether the payor had an articulable and objective reason to deny payment at the time it took action. Lafayette Bone & Joint Clinic, supra; Authement v. Shappert Engineering, 02-1631 (La. 02/25/03), 840 So.2d 1181; Henderson v. Graphic Packaging, Inc. , 48,491 (La. App. 2 Cir. 11/20/13), 128 So.3d 599.

Awards of penalties and attorney fees in workers' compensation cases are essentially penal in nature and are intended to deter indifference and undesirable conduct by employers and insurers toward injured employees. Iberia Medical Center v. Ward , 09-2705 (La. 11/30/10), 53 So.3d 421 ; Smith v. Highlines Construction Co., Inc. , 50,636 (La. App. 2 Cir. 07/06/16), 198 So.3d 210. The WCJ's grant or denial of penalties and attorney fees in a workers' compensation case is subject to manifest error review. Thomas v. Browning-Ferris Inc ., 04-1584 (La. 02/25/05), 894 So.2d 1091 ; Smith, supra; Tingle v. Page Boiler, Inc ., 50,373 (La. App. 2 Cir. 01/13/16), 186 So.3d 220.

At the beginning of the hearing, defendant's counsel informed the WCJ that defendant's adjuster had approved the neuropathic cream after taking Dr. Gordon's deposition the previous week. Thus, the only issue left for the WCJ to decide was whether claimant was entitled to attorney fees and penalties as a result of defendant's refusal to approve the neuropathic cream refills when requested to do so by claimant's pharmacy.

Notwithstanding defendant's own conclusion in November 2013 (and on several occasions thereafter) that the neuropathic cream was medically necessary, as well as a plethora of documentation as to the medical necessity of the neuropathic cream available to defendant and its third party administrator, defendant denied reauthorization of the prescription cream in late March 2016 based upon a cursory review of two medical/insurance documents and a reference to general language regarding topical medications found in the medical treatment guidelines. Claimant's attorney also supplied defendant with further documentation and evidence reiterating the medical necessity of the prescription cream on April 14, 2016. Despite this additional information, defendant did not authorize the neuropathic cream until a couple of days before the hearing in this matter (the day after taking Dr. Gordon's deposition). We find no error in the WCJ's conclusion that defendants failed to reasonably controvert the medical necessity of the neuropathic cream or its assessment of a $2,000 penalty and $8,000 attorney fee award.

In accordance with La. C.C.P. art. 2133, claimant has answered the appeal, requesting an increase in attorney fees for legal work performed in connection with this appeal. We award claimant's counsel an additional fee of $2,000 for her defense of the employer's unsuccessful appeal. See Frith v. Riverwood, Inc. , 04-1086 (La. 01/19/05), 892 So.2d 7 ; Maxwell, supra .

CONCLUSION

For the reasons set forth above, the judgment of the WCJ is amended to add an additional attorney's fee of $2,000 for this appeal. At defendant's costs, the judgment, as AMENDED, is AFFIRMED.

      Defendant has also appealed from a ruling by the WCJ denying an exception of subject matter jurisdiction.

      Medical necessity means health care services that are clinically appropriate, in terms of type, frequency, extent, site, and duration, and effective for the patient's illness, injury, or disease, and in accordance with the medical treatment schedule and the provisions of La. R.S. 23:1203.1. Kendrick v. Hercules Concrete Pumping Service, Inc. , 51,202 (La. App. 2 Cir. 02/17/17), 216 So.3d 256 ; Sanchez v. Caesar's Entertainment, Inc. , 49,864 (La. App. 2 Cir. 06/24/15), 166 So.3d 1283 ; Gilliam v. Brooks Heating & Air Conditioning , 49,161 (La. App 2 Cir. 07/16/14), 146 So.3d 734 ; LAC 40:I:2717(C)(3). To be medically necessary, a service must be consistent with the diagnosis and treatment of a condition or complaint, in accordance with the medical treatment schedule, not solely for the convenience of the patient, family, hospital or physician, and furnished in the most appropriate and least intensive type of medical care setting required by the patient's condition. Id.

      In Lafayette Bone & Joint Clinic v. Louisiana United Business SIF , 15-2137 (La. 06/29/16), 194 So.3d 1112, which involved a pre-guidelines dispute, the defendant, LUBA, notified the plaintiffs, Lafayette Bone & Joint (LB & J) Clinic and its physicians, by letter dated June 5, 2008, that it would no longer pay for LB & J dispensed prescription medications and that any ongoing consent to or authorization of in-office dispensing of prescription medications by LB & J physicians was terminated. The supreme court found that LUBA's authorization for the injured employees to obtain medical treatment did not also include authorization to dispense prescription medications to the injured employee patients after the date of the letter which revoked or denied consent/authorization. The court pointed out that the plaintiffs' remedy was to seek OWC oversight of the dispute pursuant to La. R.S. 23:1034.2(F)(1) (which provides that, should a dispute arise between a health care provider and the employee, employer, or workers' compensation insurer, either party may submit the dispute to the OWC in the same manner and subject to the same procedures as established for dispute resolution of claims for workers' compensation benefits) and La. R.S. 23:1310.3 (which provides that, a claim for benefits, the controversion of entitlement to benefits, or other relief under the Workers' Compensation Act shall be initiated by the filing of the appropriate form with the OWC administration.... Except as otherwise provided by R.S. 23:1101(B), 23:1361, and 23:1378(E), the WCJ shall be vested with original exclusive jurisdiction over all claims or disputes arising out of the chapter, including but not limited to ... payment for medical treatment....).


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Vernon JACKSON, Appellant
    No. 51,575-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017.
    LOUISIANA APPELLATE PROJECT, By: Chad M. Ikerd, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, HOLLY Y. McGINNESS, TOMMY J. JOHNSON, Assistant District Attorneys, Ann Arbor, Counsel for Appellee
    Before BROWN, PITMAN, and GARRETT, JJ.
   GARRETT, J.

Following a bench trial, the defendant, Vernon Jackson, was convicted as charged of second degree battery. He was sentenced to 41//2 years at hard labor. He appeals. We affirm the defendant's conviction and sentence.

FACTS

The defendant and the female victim were involved in a romantic relationship. On June 18, 2014, a physical altercation occurred between them, during which the defendant struck the victim in the face. She suffered an orbital blowout fracture and a broken nose. As a result of the injuries sustained in this confrontation, the victim's left eye ruptured and eventually had to be surgically removed and replaced with a prosthetic eye.

The defendant was charged with second degree battery. After he waived his right to a jury trial, he was convicted as charged in a bench trial. A motion for post-verdict judgment of acquittal was denied. The trial court sentenced him to 4½ years at hard labor. A motion to reconsider sentence was denied.

On appeal, the defendant challenges the sufficiency of the evidence and argues that his sentence is excessive.

SUFFICIENCY OF EVIDENCE

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v.Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Sims , 49,682 (La. App. 2 Cir. 2/27/15), 162 So.3d 595, writ denied , 2015-0602 (La. 2/5/16), 186 So.3d 1161. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Sims , supra .

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Stephens , 49,680 (La. App. 2 Cir. 5/20/15), 165 So.3d 1168.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Stephens , supra .

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Bailey , 50,097 (La. App. 2 Cir. 9/30/15), 180 So.3d 442.

A battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33. Second degree battery is defined as "a battery when the offender intentionally inflicts serious bodily injury." La. R.S. 14:34.1(A). "Serious bodily injury" is defined as "bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." La. R.S. 14:34.1(B)(3).

Second degree battery is a specific intent crime and, therefore, the evidence must show that the defendant intended to inflict serious injury. State v. Fuller , 414 So.2d 306 (La. 1982) ; State v. Linnear , 44,830 (La. App. 2 Cir. 12/9/09), 26 So.3d 303. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Linnear , supra . The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of this determination is to be guided by the standards of Jackson v. Virginia , supra. State v. Linnear , supra .

In a non-homicide situation, a claim of self-defense requires a dual inquiry: first, an objective inquiry into whether the force used was reasonable under the circumstances; and, second, a subjective inquiry into whether the force used was apparently necessary. State v. Robinson , 37,043 (La. App. 2 Cir. 5/14/03), 848 So.2d 642 ; State v. Williams , 50,004 (La. App. 2 Cir. 9/30/15), 178 So.3d 1051 ;

State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied , 2012-2667 (La. 5/24/13), 116 So.3d 659.

This circuit has repeatedly held that the burden of proving self-defense in a non-homicide case rests with the defendant to prove the defense by a preponderance of the evidence. See State v. Williams , supra ; State v. Jones , 49,396 (La. App. 2 Cir. 11/19/14), 152 So.3d 235, writ denied , 2014-2631 (La. 9/25/15), 178 So.3d 565 ; State v. Glover , supra ; State v. Cheatham , 38,413 (La. App. 2 Cir. 6/23/04), 877 So.2d 164, writ denied , 2004-2224 (La. 6/24/05), 904 So.2d 717 ; State v. Robinson , supra ; State v. Mason , 499 So.2d 551 (La. App. 2 Cir. 1986).

Discussion

The defendant argues that there was insufficient evidence to prove beyond a reasonable doubt that he hit the victim, much less that he did so intentionally. Assuming arguendo that he did intentionally hit her in the eye, he also asserts for the first time on appeal that the state failed to prove beyond a reasonable doubt that he was not acting in self-defense.

The state presented the testimony of three witnesses: the victim, her treating ophthalmologist, and the detective who investigated the offense. The victim, a teacher for the Early Head Start program, stated that she went to the defendant's home after she got off work. (Although she and the defendant did not live together, she apparently spent a great deal of time at his home, where she assisted him with the care of his elderly mother.) After arriving at the defendant's residence, the victim began drinking wine and continued to do so throughout the evening.

At some point during the evening, she allowed the defendant to use her cellphone to call his ex-wife to obtain information he needed for an application for disability. Concerned that the conversation was becoming "too relaxed," she demanded her phone back. She then noticed that the bed had been remade and accused the defendant of cheating on her. They verbally argued, and the victim declared her intention to gather her belongings and leave. At this point, the defendant struck her in the face, and the victim "blanked out." When she got back up, the defendant apologized for hitting her.

Although the defendant initially tried to call his sister to take her to the emergency room, the victim insisted on having her daughter take her. The victim was taken to University Health Hospital, where she underwent treatment. She required surgery and was initially hospitalized for two days. She testified that she was in constant, severe pain until her left eye was removed a month later in a second operation. On a scale of 1 to 10, the victim described her pain level as being at 10 throughout this time period. Due to the loss of her eye, she has been unable to return to work.

The victim's ophthalmologist testified that, when the patient first presented, it was his understanding that she had been struck in the face, and her injuries were consistent with such a blow. The doctor detailed the seriousness of the victim's injuries. In describing her ruptured eyeball, he stated that she was struck in the face with such force that much of the contents of her left eye were expelled. She required surgery to close the wound in order to prevent infection and to give the eye time to heal to see if any vision could be achieved. Unfortunately, the damage was so severe and the victim was in such constant pain that enucleation or removal of the eyeball was recommended. A second surgery to remove the eyeball was performed about a month after the injury occurred. According to the doctor, she was subsequently fitted with a prosthesis, which helps the eye socket hold its shape. The state introduced into evidence the victim's medical records, which fully documented all of this testimony and the severity of her injuries.

Detective Chad Dailey of the Shreveport Police Department testified about his investigation. He interviewed the victim several days after the incident. She recounted the circumstances of the attack. She also informed him that, following the incident, the defendant had been texting her, asking her to come back and saying what happened was an accident. In one text, he stated that the incident could bring them "closer together."

On June 25, 2014, one week after the altercation, Detective Dailey interviewed the defendant. According to the detective, the defendant had no visible injuries and did not report sustaining any injuries or receiving medical treatment after the confrontation. After advising the defendant of his rights, Detective Dailey took a recorded statement from the defendant, in which he recounted his version of the incident. The recording was played at the defendant's trial after the trial court ruled that the statement was given freely and voluntarily. The defendant's version of the incident was markedly different from the victim's account. The defendant asserted that he argued with the victim, who was drunk and aggressive, after he rebuffed her sexual advances. He told the detective that she backed him up against a door, "swinging wildly," with her "head down," and "charging [him] like a bull." To defend himself, he put up his arm to "block" her. He speculated that he might have "overblocked" and caught her in the eye. He insisted that he did not intend to hit her in the eye and that he did not even know he had done so until she began bleeding profusely. When the detective repeatedly questioned the defendant about how merely blocking the victim could have caused such serious injuries to her, the defendant admitted that he could not explain why she was so badly injured. He stated repeatedly that he never threw a punch or swung at her, maintaining that he did not intend to hit her. In fact, he stated that he was not scared of the victim harming him. He admitted sending her the subsequent text messages, stating that he still loved and missed her. In particular, he said he loved the way the victim cared for his mother and cleaned. Throughout the statement, the defendant displayed a complete lack of remorse and, instead, repeatedly blamed the victim for causing the injuries to occur.

The defendant presented no witnesses at trial and did not testify.

At the conclusion of the bench trial, the trial court found the defendant guilty of second degree battery. Unlike a jury trial, we have the benefit of the trial court's extensive oral reasons for finding the defendant guilty as charged. It specifically found the victim to be a highly credible witness. Furthermore, combining her testimony with the defendant's statement to the police, the court found that the defendant struck the victim in the face. While the defendant may not have intended to blind the victim, the court concluded that he acted with specific intent and meant to inflict an extremely powerful blow. The trial court categorically dismissed the defendant's claim that this was merely a "tragic accident." Although the defendant did not claim self-defense during the trial, the trial court also addressed this issue and ruled it out.

We find that, viewed in the light most favorable to the prosecution, the evidence presented at trial proved the defendant's guilt beyond a reasonable doubt. The trial court made a credibility determination accepting the victim's account of the altercation and rejecting the defendant's self-serving version. The victim suffered a devastating and vicious blow to the face. Despite the defendant's argument that the victim cannot say she saw him inflict that blow, the evidence established that the defendant was the only person in a position to have struck her. In fact, he admitted as much in his statement to the police. Although he attempted to downplay his actions and characterize the physical contact between himself and the victim which injured her as merely a "blocking movement" to defend himself, his statement nonetheless confirmed that his intentional actions caused her severe injuries. Furthermore, he utterly failed to establish any possible self-defense claim by a preponderance of the evidence. See State v. Kirkland , 42,397 (La. App. 2 Cir. 8/15/07), 962 So.2d 1173, writ denied , 2007-1928 (La. 2/15/08), 976 So.2d 174, in which this court affirmed a second degree battery conviction, finding that "[t]he multiple broken bones in the victim's face and the resulting vision loss demonstrate the tremendous force used by [the defendant] and are sufficient evidence to show that he had the specific intent to inflict serious bodily injury."

This assignment lacks merit.

EXCESSIVE SENTENCE

Law

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Shipp , 46,715 (La. App. 2 Cir. 11/2/11), 78 So.3d 805. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. Mandigo , 48,801 (La. App. 2 Cir. 2/26/14), 136 So.3d 292, writ denied , 2014-0630 (La. 10/24/14), 151 So.3d 600.

Second, a sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Shipp , supra . A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Little , 50,776 (La. App. 2 Cir. 8/10/16), 200 So.3d 400, writ denied , 2016-1664 (La. 6/16/17), 219 So.3d 341.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cotten , 50,747 (La. App. 2 Cir. 8/10/16), 201 So.3d 299. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Duncan , 47,697 (La. App. 2 Cir. 1/16/13), 109 So.3d 921, writ denied , 2013-0324 (La. 9/13/13), 120 So.3d 280. The trial court is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. 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. Bailey , supra .

At the time of the offense, the sentence for a conviction of second degree battery was a fine of not more than $2,000 or imprisonment, with or without hard labor, for not more than five years, or both. La. R.S. 14:34.1.

Discussion

The defendant claims that the sentence imposed was statutorily and constitutionally excessive.

During a violent confrontation, the defendant struck the victim in the face with such force that her nose was broken, her left eye socket was fractured, and her left eyeball ruptured. As a result of the injury to her eye, the victim was ultimately forced to have her left eyeball removed. In addition to the permanent loss of sight, the victim is now required to wear a prosthesis in that eye socket. Additionally, due to her injury, she was unable to return to her job and suffered major financial hardship.

Our review of the record reveals that the trial court adequately articulated the factors it relied upon in imposing sentence. In particular, the trial court cited as aggravating factors the undue risk of the defendant committing another crime, the vicious nature of the attack, and the substantial and permanent physical harm suffered by the victim. The trial court also considered the defendant's criminal history, which included a 1975 federal racketeering conviction; a 1993 conviction for cocaine possession in Texas; and a 2010 conviction for possession of drug paraphernalia in Louisiana. It further noted that the defendant had not acted under strong provocation and that he lacked substantial grounds tending to excuse and justify his criminal conduct.

We find that the trial court did not abuse its wide discretion in imposing this near-maximum sentence upon this defendant, who showed no real remorse for his actions. In light of the permanent and devastating harm suffered by the victim, we find that the sentence imposed by the trial court does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense.

This assignment lacks merit.

ERROR PATENT

Our error patent review reveals that the trial court did not properly advise the defendant of the prescriptive period for seeking post-conviction relief, as required by La. C. Cr. P. art. 930.8(C). Therefore, we advise the defendant, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under La. C. Cr. P. arts. 914 or 922. See La. C. Cr. P. art. 930.8(A) ; State v. Brooks , 49,024 (La. App. 2 Cir. 5/14/14), 139 So.3d 1072, writ denied , 2014-1202 (La. 2/13/15), 159 So.3d 459.

CONCLUSION

The defendant's conviction and sentence are affirmed.

AFFIRMED.

      We note that, during the trial, the defendant's position was that what transpired was a "horrible" and "tragic accident" and that there was no proof of a specific intent to cause any injuries. The argument on appeal pertaining to self-defense was never urged below. In finding the defendant guilty, the trial court determined there was no legal justification for the defendant's actions and there was no viable self-defense claim.

      The statute was amended to increase the penalty from five years to eight years by Acts 2014, No. 722, effective August 1, 2014. The instant offense occurred on June 18, 2014. A defendant must be sentenced according to sentencing provisions in effect at the time of the commission of the offense. State v. Sugasti , 2001-3407 (La. 6/21/02), 820 So.2d 518 ; State v. Modisette , 50,846 (La. App. 2 Cir. 9/28/16), 207 So.3d 1108.