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Prejean v. Warden Roland Rodrigue

Court of Appeals of Louisiana, First Circuit
Dec 27, 2023
2023 CA 0646 (La. Ct. App. Dec. 27, 2023)

Opinion

2023 CA 0646

12-27-2023

DAX PREJEAN v. WARDEN ROLAND RODRIGUE; ASSISTANT WARDEN CONRAD LEWIS; ASSUMPTION PARISH DETENTION CENTER, SHERIFF LELAND FALCON, EX-OFFICIO, ASSUMPTION PARISH SHERIFF'S OFFICE, ASSUMPTION PARISH POLICE JURY THROUGH THE PARISH PRESIDENT G. IRVING COMEAUX

Donna U. Grodner Baton Rouge, LA Attorney for Plaintiff -Appellant, Dax Prejean Jason P. Wixom New Orleans, LA Attorney for Defendants -Appellees, Sheriff Leland Falcon, Warden Roland Rodrigue, Assistant Warden Conrad Lewis Carl E. Hellmers, III Stephanie D. O' Brien New Orleans, LA Attorneys for Defendant -Appellee, Dr. Keith Landry


On Appeal from the 23rd Judicial District Court In and for the Parish of Assumption State of Louisiana Trial Court No. 38291 Honorable Alvin Turner, Jr., Judge Presiding

Donna U. Grodner Baton Rouge, LA Attorney for Plaintiff -Appellant, Dax Prejean

Jason P. Wixom New Orleans, LA Attorney for Defendants -Appellees, Sheriff Leland Falcon, Warden Roland Rodrigue, Assistant Warden Conrad Lewis

Carl E. Hellmers, III Stephanie D. O' Brien New Orleans, LA Attorneys for Defendant -Appellee, Dr. Keith Landry

BEFORE: McCLENDON, HESTER, AND MILLER, JJ.

HESTER, J.

Plaintiff, Dax Prejean, appeals a judgment of the trial court sustaining the dilatory exception raising the objection of prematurity filed by defendant, Keith Landry, M.D., and dismissing the claims against Dr. Landry without prejudice. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL HISTORY

Through the petition and amended petition for damages/denial of medical care, plaintiff alleged that he was an arrestee and a pretrial detainee held by the Assumption Parish Sheriff at the Assumption Parish Detention Center ("the prison") in August of 2020. He alleged that on August 20, 2020, after having teeth pulled by a dentist, he was bleeding, became weak, and collapsed. Despite requesting medical attention, he was not "checked medically," continued to bleed, and was locked in a cell overnight. Plaintiff alleged that he was returned to general population the next day, after which time he collapsed again, hitting his head. Plaintiff was taken to the hospital, received a CT scan, and returned to the prison. According to plaintiff, the CT scan was abnormal, and he was still unable to walk.

Subsequently, plaintiff was sent to another hospital and received another CT scan. Plaintiff alleged that the doctor ordered five days of bed rest and directed that plaintiff be referred to a neurologist if he was still unable to walk afterwards. In the following weeks, still allegedly unable to walk after the prescribed bedrest, plaintiff requested to "go to the follow up appointment." The sheriffs employees refused his request. Plaintiff claimed the denials for medical attention and to see a doctor continued, and specifically alleged that "Dr. Landry never checked on him."

Plaintiff further alleged that on September 10, 2020, medical personnel took his wheelchair, leaving him unable to travel to the bathroom or obtain water. Thereafter, plaintiff filed multiple grievances and Administrative Remedy Procedures ("ARPs") requesting medical attention, which were allegedly ignored. Plaintiff alleged that Warden Roland Rodrigue and Assistant Warden Conrad Lewis had notice of the injury and the denial of medical attention, yet both refused to intervene.

Plaintiff maintained that the sheriff and the warden had a duty to ensure inmates were seen by the doctor and received medications. Plaintiff also alleged that the sheriff was obligated to maintain the prison in accordance with basic guidelines and to properly maintain medical services at the prison. Plaintiff further alleged that these duties were breached and that his statutory rights under LAC 22:III:2909 regarding medical and health care were denied.

Louisiana Administrative Code, Title 22, Part III, Section 2909 lists certain minimum jail standards concerning medical and health care and provides, in pertinent part, as follows:

A. A licensed physician shall be responsible for the health care program and for the practice of medicine in the institution, and no restrictions shall be placed on the medical judgment of the physician.
B. All health care shall be provided in accordance with written policies and procedures developed by the physician in charge and endorsed by the administrator.
D. Treatment given by other than a licensed physician shall be made by trained personnel according to written, standing or direct orders of the physician in charge.
E. Inmates shall have continuous access to emergency health care by trained personnel and professional medical attention whenever required.
F. Inmates shall have access to routine health care by a physician within 48 hours after making such request.
L. Inmates shall be able to report illness or health complaints daily and all reports shall be recorded together with complaint disposition.
P. Space, equipment, supplies and material shall be provided for all health services delivered in the facility.

Plaintiff claimed he suffered injuries as a result of the negligence of Dr. Landry, prison medical personnel, the sheriff, the warden, and the assistant warden. Plaintiff maintained that he was unable to walk due to the denial of medical care and "suffered severe injury followed by a denial [of] medical treatment, pain and suffering, acute mental and emotional injury." Through the original and amended petitions, plaintiff sought damages, naming the sheriff, the warden, the assistant warden, and Dr. Landry as defendants. The sheriff, warden, and assistant warden filed affirmative defenses and an answer to the original petition.

In the original petition, filed on August 19, 2021, plaintiff named Sheriff Leland Falcon, Warden Roland Rodrigue, Assistant Warden Conrad Lewis, and the Assumption Parish Police Jury as defendants. Plaintiff later dismissed the Assumption Parish Police Jury and amended his petition to add Keith Landry, M.D. as a defendant.

In response to the amended petition, Dr. Landry filed a dilatory exception asserting the objection of prematurity and maintained that plaintiffs claims must first be brought before a medical review panel in accordance with La. R.S. 40:1231.8(A)(1)(a). Dr. Landry further maintained that he is a qualified health care provider as that term is defined in La. R.S. 40:1231.1(A)(10) and that the claims asserted against him sound in medical malpractice. In support of his arguments, Dr. Landry attached certified documentation from the Patient's Compensation Fund ("PCF"), which he alleged established his status as a qualified health care provider.

Plaintiff opposed the exception, arguing that the health care identified in the petition was exclusively provided in the prison and was governed by the Louisiana Corrections Administrative Remedy Procedure Act ("CARP"), La. R.S. 15:1171, et seq. Plaintiff further argued that Dr. Landry, as a prison contractor, was required to comply with CARP and that he waived any possible right to go before a medical review panel on a claim made by an inmate. Plaintiff also argued that he, as an inmate at the prison, had no knowledge that there could be any circumstances requiring him to request a medical review panel as opposed to pursuing his administrative remedies pursuant to CARP.

A hearing was held on July 25, 2022, at which time arguments were made by counsel and exhibits were submitted. At the conclusion of the hearing, the trial court sustained the exception asserting the objection of prematurity and dismissed plaintiffs claims against Dr. Landry without prejudice. The judgment was reduced to writing and signed on August 23, 2022. This appeal followed. On appeal, plaintiff assigns as error the trial court's determination that the grievance procedures (CARP) were inapplicable and that plaintiff was required to request a medical review panel when he had no notice of this procedure. Plaintiff also argues that Dr. Landry failed to submit proof that he was a qualified health care provider entitled to have the claim submitted to a medical review panel.

LAW AND DISCUSSION

Exception of Prematurity

A medical malpractice claim against a qualified health care provider is subject to dismissal if the claim has not been first presented to a medical review panel in accordance with La. R.S. 40:1231.8(A)(1)(a) of the Louisiana Medical Malpractice Act ("MMA"), La. R.S. La. 40:1231.1, et seq. The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider. Rivera v. Bolden's Transp. Serv., Inc., 2011-1669 (La.App. 1st Cir. 6/28/12), 97 So.3d 1096, 1099. If a lawsuit against a health care provider covered by the MMA has been commenced in a court and the claim has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the suit dismissed. Id.

The burden is on the defendant to prove prematurity and initial immunity from suit as a qualified health care provider under the MMA. The defendant must also show he is entitled to a medical review panel, because the allegations fall within the MMA. Andrews v. Our Lady of the Lake Ascension Community Hospital, Inc., 2013-1237 (La.App. 1st Cir. 2/18/14), 142 So.3d 36, 38.

Prisoner Suits

In accordance with the Louisiana Prison Litigation Reform Act ("PLRA"), La. R.S. 15:1181 et seq., a prisoner suit is defined as "any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison." La. R.S. 15:1181(2). Prisoner suits are subject to the administrative procedures of CARP, which must be exhausted prior to filing suit in district court. La. R.S. 15:1184(A)(2); also see Alonzo v. Cain, 2014-0172 (La.App. 1st Cir. 9/19/14), 154 So.3d 551, 554, writ denied, 2014-2165 (La. 12/8/14), 153 So.3d 445.

The administrative remedy procedure set forth in CARP is the formal grievance mechanism that all offenders committed to the custody of the Department of Public Safety and Corrections ("DPSC") or a sheriff must use before they may proceed with a suit in federal or state court. Alonzo, 154 So.3d at 553; LAC 22:1:3 25(D)(1). Under the provisions of CARP, an offender aggrieved by an adverse decision by DPSC or a sheriff rendered pursuant to the prescribed administrative remedies may seek judicial review in the Nineteenth Judicial District Court; however, this provision specifically excludes administrative decisions relative to delictual actions for injury or damages. La. R.S. 15:1177(A). Delictual actions for injury or damages shall be filed separately as original civil actions pursuant to La. R.S. 15:1177(C). Foster v. Louisiana Department of Public Safety & Corrections, 2012-0358 (La.App. 1st Cir. 11/2/12), 111 So.3d 81, 82. These delictual actions are reviewed de novo by the district court after the exhaustion of the administrative remedies set forth in CARP. Alonzo, 154 So.3d at 554.

"Offender" is defined in La. R.S. 15:1174(2) as "an adult or juvenile offender who is in the physical or legal custody of the Department of Public Safety and Corrections, a contractor operating a private prison facility, or a sheriff when the basis for the complaint or grievance arises."

After the Supreme Court's decision in Pope v. State, 99-2559 (La. 6/29/01), 792 So.2d 713, the legislature amended La. R.S. 15:1177(A) to exclude tort claims from judicial review. See 2002 La. Acts, 1st Ex. Sess., No. 89, § 2.

Plaintiff's Prisoner Suit for Medical Malpractice

In this original civil action, plaintiff asserts delictual claims against the sheriff, the warden, the assistant warden, and Dr. Landry. However, Dr. Landry maintains that the original action against him is premature because it was brought before the right to enforce it accrued, i.e., before the claim was reviewed by a medical review panel pursuant to La. R.S. 40:1231.8(A)(1)(a) of the MMA.

Plaintiff argues that the Inmate Grievance Procedures, which are the administrative remedy procedures applicable to the prison, required him to file a grievance and did not require him to "file a request for review by a medical review panel to exhaust his administrative remedies for the denial of medical care at the [prison]." Plaintiff further argues that he was misled by the prison's administrative remedy procedures and that the prison failed to give notice that "the medical department was under a separate contract with the Assumption Parish Police Jury" or that "any complaints on medical had to go before a medical review panel rather than through the grievance process." However, these arguments are more properly directed to the claims against the remaining defendants in this case, as they are inapplicable to plaintiff s claims against Dr. Landry.

In connection with plaintiff's opposition to Dr. Landry's exception, plaintiff submitted "the ARP procedures in place at the Assumption Parish Jail," which were excerpts of an unidentified document later referred to at the hearing as the "Assumption Parish Procedures."

Plaintiff argues that the prison's grievance procedures, which address claims of medical malpractice, are applicable to his claims against Dr. Landry to the exclusion of the MMA. Louisiana Revised Statutes 15:1171(B), provides, in pertinent part, as follows:

The sheriff in this case adopted grievance procedures in accordance with the provisions of CARP. The sheriffs grievance procedures specifically reference grievances against the medical department:

If the inmate files a grievance against the medical department, it will be handled by that department not the Wardens [sic] Office. A medical grievance must have the word MEDICAL written on the top of the grievance. It also must be date stamped and received by the Medical Director or designee within 30 days of the complaint.
It is unclear from the record whether plaintiff followed this procedure in asserting his claims against the "medical personnel" referenced in his petition. It is also unclear what the handling procedures are once the medical department receives the grievance, as the excerpts from the sheriffs grievance procedures in the record do not contain this information.

The ... sheriff may also adopt... administrative remedy procedures for receiving, hearing, and disposing of any and ail complaints and grievances by adult or juvenile offenders against the state, the governor, the department or any officials or employees thereof, the contractor operating a private prison facility or any of its employees, shareholders,
directors, officers, or agents, or a sheriff, his deputies, or employees, which arise while an offender is within the custody or under the supervision of the department, a contractor operating a private prison facility, or a sheriff. Such complaints and grievances include but are not limited to any and all claims seeking monetary, injunctive, declaratory, or any other form of relief authorized by law and by way of illustration includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies, or statutes. Such administrative procedures, when promulgated, shall provide the exclusive remedy available to the offender for complaints or grievances governed thereby insofar as federal law allows.

The procedures adopted by the sheriff provide the exclusive remedy available to plaintiff for medical malpractice complaints arising while he is within the custody of the sheriff. Importantly, La. R.S. 15:1171(B) encompasses claims against "the state, the governor, the department or any officials or employees thereof,... a sheriff, his deputies, or employees." Here, the contract between Dr. Landry and the Assumption Parish Police Jury provides that Dr. Landry is an independent contractor. As Dr. Landry is not an employee of the sheriff, La. R.S. 15:1711(B) and the prison's grievance procedures do not apply to plaintiffs claims against Dr. Landry.

We acknowledge that the Malpractice Liability for State Services Act ("MLSSA"), La. R.S. 40:1237.1 et seq., contemplates medical malpractice claims of prisoners in La. R.S. 40:1237.1(E)(1), which provides, in pertinent part, as follows:

The medical malpractice claims of prisoners relating to health care rendered in a correctional facility and arising under this Part shall be submitted to correctional administrative review procedures established for administrative hearings in the correctional environment or established in accordance with express law, including R.S. 15:1171 et seq., R.S. 49:978.1, and the administrative rules and regulations pertaining thereto. All other medical malpractice claims arising under this Part, including wrongful death and survival actions related to prisoners, shall be submitted to a medical review panel in accordance with R.S. 40:1237.2.

If the medical malpractice claims of prisoners relate to health care received in a correctional facility and arise under the MLSSA, then those claims are subject to administrative review procedures such as CARP. See La. R.S. 40:1237.1(E)(1).

However, in order to arise under the MLS SA, the claim must be one for "malpractice," which term is defined in La. R.S. 40:1237.1(A)(4) as the failure to exercise the reasonable standard of care set forth in La. R.S. 40:1237.1(B) in the provision of health care when such failure proximately causes injury to a patient. Further, "health care" is defined as any act or treatment which was performed or furnished or which should have been performed or furnished by any person covered by this Part for, to, or on behalf of, a patient during the medical care, treatment or confinement of the patient. La. R.S. 40:1237.1(A)(3). Importantly, a "person covered by this Part" is defined in La. R.S. 40:1237.1(A)(9)(a), in pertinent part, as follows:

(i) The state or any of its departments, offices, agencies, boards, commissions, institutions, universities, facilities, hospitals, clinics, laboratories, health care units, ambulances, ambulance services, university health centers, and other state entities which may provide any kind of health care whatsoever, and the ... employees thereof when acting within the course and scope of their duties in providing health care in connection with such state entity; or
(ii) A person acting in a professional capacity in providing health care services, by or on behalf of the state, ..., who is either:
(aa) Acting within the course and scope of his employment pursuant to a contract with the state, which contract specially names that health care provider and designates him to render such health care services, pursuant to a staff appointment to a state hospital or other state health care facility, or pursuant to an assignment to render such health care services for or on behalf of the state, without regard to where the services are performed, whether or not he is paid for such services.

Louisiana Revised Statutes 40:1237.1(A)(9)(b), however, makes clear that a "person covered by this Part" shall not mean and shall not include a political subdivision of the state, nor shall it mean or include any individual acting in a professional capacity in providing health care services not by or on behalf of the state.

Plaintiff alleged that all relevant events relating to his claims occurred at a parish prison and alleges that the physician, Dr. Landry, was under a contract with the parish to provide medical services to the prison. The parish is a political subdivision of the state. La. Const, art. VI, § 44(2). Plaintiff introduced the contract between Dr. Landry and the Assumption Parish Police Jury at the trial on the exception, showing that Dr. Landry was engaged to "oversee the administration and health care of inmates in the Parish Detention Facility including, but not limited to, the prescribing of drugs and evaluations of said prisoners." Moreover, the there are no allegations in the petitions, nor was any evidence introduced to indicate that the MLSSA otherwise applies in this case. The MLSSA, therefore, is inapplicable to plaintiffs claims against Dr. Landry.

Accordingly, we do not find error in the trial court's determination that the grievance procedures (CARP) were inapplicable to plaintiffs claims against Dr. Landry.

Plaintiffs Claim for Medical Malpractice Against Dr. Landry

Pursuant to La. R.S. 15:703(A), the governing authority of a parish is mandated to appoint annually a physician who shall attend the prisoners who are confined in parish jails whenever they are sick. Any physician appointed pursuant to La. R.S. 15:703(A) shall be licensed and shall be a qualified health care provider in accordance with La. R.S. 40:1231.2. Louisiana Revised Statutes 15:703(B) authorizes a parish governing authority to enter into a contract with a licensed health care provider to provide requisite health care services to prisoners and requires that the health care provider be qualified pursuant to La. R.S. 40:1231.2 of the MMA. In connection with La. R.S. 15:703(A) and (B)'s requirement that the health care provider be qualified under the MMA, La. R.S. 15:703(C) provides that any action by a prisoner or his representative to recover damages or any other losses, including those for the death of the prisoner, as a result of the actions or inactions of the physician or health care provider in the performance or nonperformance of health care services shall be governed by the MMA, La. R.S. 40:1231.1 et seq.

As acknowledged in plaintiffs brief, the Assumption Parish Police Jury contracted with Dr. Landry to provide the requisite health care services pursuant to La. R.S. 15:703(B), which mandated that Dr. Landry be a qualified health care provider in accordance with La. R.S. 40:1231.2 of the MMA. Pursuant to La. R.S. 15:703(C), the malpractice claims of plaintiff, a prisoner at the Assumption Parish Detention Center, against Dr. Landry, the contracted health care provider, must be governed by the MMA. Notwithstanding, Dr. Landry was required to establish that he was, in fact, a qualified health care provider under the MMA.

Louisiana Revised Statutes 40:1231.2(A) sets forth the requirements to be qualified under the provisions of the MMA:

[A] health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1231.4.
(3) For self-insured health care providers, initial qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Initial qualification shall be effective for all other health care providers at the time the malpractice insurer accepts payment of the surcharge.
Louisiana Administrative Code, Title 37, Part III, § 515 provides the steps to be taken by a health care provider to obtain a certificate of enrollment, and specifically states as follows:
A. Upon receipt and approval of a completed application (including evidence of financial responsibility pursuant to § 505, § 507 or § 509) and payment of the applicable surcharge by or on behalf of the applicant health care provider, the executive director shall issue and deliver to the health care provider a certificate of enrollment with the fund, identifying the health care provider and specifying the effective date and term of such enrollment and the scope of the fund's coverage for that health care provider.
B. Duplicate or additional certificates of enrollment shall be available to and upon the request of an enrolled health care provider or his or its attorney, or professional liability insurance underwriter when such certification is required to evidence enrollment or qualification with the fund in connection with an actual or proposed malpractice claim against the health care provider.

Accordingly, in order to obtain status as a qualified health care provider under the MMA Dr. Landry was required to provide proof of financial responsibility with the PCF pursuant to La. R.S. 40:1231.2(E) and to pay the applicable surcharge in accordance with La. R.S. 40:1231.4(A)(3). See Luther v. IOM Co., 2013-0353 (La. 10/15/13), 130 So.3d 817, 824. Notably, the MMA does not provide coverage to health care providers who fail to qualify prior to the commission of tortious conduct. Id. (citing Abate v. Healthcare International, Inc., 560 So.2d 812, 813 (La. 1990)).

Additionally, in order to be considered a "health care provider" Dr. Landry was required to be "licensed or certified by this state to provide health care or professional services as a physician." La. R.S. 40:1231.1(10).

As the party filing the exception, the burden was on Dr. Landry to prove prematurity and initial immunity from suit as a qualified health care provider under the MMA. Andrews, 142 So.3d at 38. Accordingly, Dr. Landry submitted documentation from the PCF stating that he "is hereby certified as an Enrollee under La. R.S. 40:1231.1 et seq., with effective dates as follows" and specifically indicating the enrollment periods as "11/1/2021-11/1/2022" and "7/14/2021-11/1/2021." The documentation indicated that Dr. Landry had insurance coverage for those periods with Louisiana Hospital Association Physicians Trust and further stated that Dr. Landry had "retroactive coverage with the above cited company for any incidents occurring since 7/16/1996 but filed after 7/14/2021." (Emphasis removed.)

A defendant may prove his status as a qualified health care provider by offering into evidence the certificate of enrollment issued by the PCF. See Dutrey v. Plaquemine Manor Nursing Home, 2012-1295 (La.App. 1st Cir. 6/17/13), 205 So.3d 934, 944-45. A certificate of enrollment issued by the PCF shall be admitted in evidence pursuant to La. R.S. 40:1231.8(B)(1)(a)(ii),

The PCF certified the existence of minimum insurance coverage for the "indicated period(s)" and acknowledged that the "surcharges for excess coverage are paid for the indicated period(s)." However, the only "indicated period(s)" on the certificate - November 1, 2021 to November 1, 2022 and July 14, 2021 to November 1, 2021 - are periods after the alleged malpractice in this case, which began on August 20, 2023. While the certificate provides information suggesting that Dr. Landry may have demonstrated his financial responsibility under La. R.S. 40:1231.2(A)(1) for the date of the alleged malpractice, the certificate submitted does not indicate whether the surcharge required by La. R.S. 40:1231.2(A)(2) was paid for the period encompassing the alleged medical malpractice. Dr. Landry may have been a qualified health care provider; however, he failed to submit evidence that he was entitled to the protections under the MMA for the relevant period and failed to carry his burden of proof. Therefore, the trial court erred in sustaining Dr. Landry's dilatory exception asserting the objection of prematurity.

Based on the date of the alleged medical malpractice and the date the claim for medical malpractice was filed against Dr. Landry, Dr. Landry appears to have insurance coverage for this claim.

The surcharge required by the MMA is assessed annually. See La. R.S. 40:1231.4(A)(2-4). Louisiana Administrative Code, Title 37, Part III, § 711 provides, in part, that "[a]nnual surcharges for renewal coverage due the board by insured health care providers whose surcharges are collected by insurers... for enrollment and qualification with the fund shall be due and payable to the collecting insurers and trusts on or before 30 days following the expiration of the prior enrollment period."

CONCLUSION

For the reasons herein assigned, the trial court's August 23, 2022 judgment sustaining the dilatory exception asserting the objection of prematurity and dismissing Dax Prejean's claims against Keith Landry, M.D. without prejudice is reversed. This matter is remanded for further proceedings. All costs of this appeal are assessed to Keith Landry, M.D.

REVERSED AND REMANDED.


Summaries of

Prejean v. Warden Roland Rodrigue

Court of Appeals of Louisiana, First Circuit
Dec 27, 2023
2023 CA 0646 (La. Ct. App. Dec. 27, 2023)
Case details for

Prejean v. Warden Roland Rodrigue

Case Details

Full title:DAX PREJEAN v. WARDEN ROLAND RODRIGUE; ASSISTANT WARDEN CONRAD LEWIS…

Court:Court of Appeals of Louisiana, First Circuit

Date published: Dec 27, 2023

Citations

2023 CA 0646 (La. Ct. App. Dec. 27, 2023)