Lafayette General Medical Center,inc. v. Richard Hill

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-971

LAFAYETTE GENERAL MEDICAL CENTER, INC.

VERSUS

RICHARD HILL

**********

APPEAL FROM THE
LAFAYETTE CITY COURT
PARISH OF LAFAYETTE, NO. 2017 CV 0367
HONORABLE FRANCES MORAN BOUILLION, CITY COURT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, Shannon J. Gremillion, John E.
Conery, and Van H. Kyzar, Judges.

COOKS, J., dissents and assigns written reasons.

REVERSED AND RENDERED.

Edward Trentham McCarthy
The McCarthy Law Firm
7922 Picardy Avenue
Baton Rouge, Louisiana 70809
(225) 767-9055
COUNSEL FOR PLAINTIFF/APPELLANT:
Lafayette General Medical Center, Inc.

Richard Hill
In Proper Person
140 Roma Drive
Breaux Bridge, Louisiana 70517
(337) 316-1397
PRO-SE DEFENDANT/APPELLEE

CONERY, Judge.

Plaintiff, Lafayette General Medical Center (LGMC) appeals the September

21, 2017 judgment of the trial court dismissing its suit on open account against

pro-se defendant Richard Hill on the basis that LGMC failed to carry its burden of

proof. For the following reasons we reverse the trial court’s dismissal of LGMC’s

claim against Mr. Hill seeking payment of his open account and render judgment

in favor of LGMC.

FACTS AND PROCEDURAL HISTORY

Richard Hill, a self-employed real estate agent, received medical services

from LGMC on three separate occasions: June 4, 2014, June 13, 2014, and June 16,

2014. Mr. Hill admitted that he went to LGMC for tests ordered by his doctors and

was seen by LGMC’s staff. The medical services were performed at LGMC on the

dates shown on the invoices Mr. Hill admittedly received.

After the medical services were rendered to Mr. Hill, LGMC billed Mr.

Hill’s health insurance company on file, Blue Cross PPO. LGMC received

payments, credits, and contractual discounts from Mr. Hill’s health insurer, which

were applied to the three bills. After payment from Mr. Hill’s insurer there were

outstanding balances as follows: June 4, 2014 - $168.00; June 13, 2014 - $623.86;

and June 16, 2014 - $1,778.82, for a total outstanding balance of $2,571.48. 1

LGMC attempted to collect the outstanding balance without success by using in-

house collection efforts as well as the services of a collection agency.

1
Mr. Hill testified that his wife, who had been employed by Continental Airlines for
some twelve to thirteen years, had lost her insurance benefits from Blue Cross PPO when
Continental Airlines was bought out by United Airlines. However, the documentation submitted
into evidence by LGMC and the Explanation of Benefits (EOB’s) submitted into evidence by the
trial court on behalf of Mr. Hill reflect the Blue Cross PPO policy was still in force and effect at
the time the medical services were rendered to Mr. Hill by LGMC.

On January 30, 2017, LGMC filed suit against Mr. Hill seeking recovery of

the $2,571.48 outstanding balance with judicial interest from the date the

obligations became due, pursuant to La.Civ.Code art. 2000. LGMC also sought a

minimum attorney fee of 33 1/3 %, or $500.00, whichever was greater, court costs,

and other costs associated with the collection of the account balance. Mr. Hill was

properly served with LGMC’s petition and answered the petition contending:

I don’t feel I owe anything ($2,571.48)[.] I was sent to take a bone +
CATScan [sic]. No one ever call[ed] me or gave me [an] appointment
to come back for review. I call[ed] the Dr’s that set it up once I didn’t
hear from know [sic] one[.] I had Obma [sic] Insurance United
Health Care. I yet haven’t heard from any of the doctors concerning
this matter, I don’t owe anything.

The trial was held on September 7, 2017, with Mr. Hill representing himself.

LGMC was represented by counsel. Also present on behalf of LGMC was its

Patient Financial Services Director, Paul Phillip Comeaux. When questioned

about the invoices, Mr. Comeaux testified that he was familiar with the related

financial records of LGMC. He further testified that the documents related to the

three separate bills for medical services provided to Mr. Hill were part of the

records of LGMC kept in the normal course of business. Mr. Comeaux reviewed

the three itemized bills for the dates of service at issue, and thoroughly discussed

the total billed charges, payments, credits, and current balance due. The three

itemized medical bills were introduced into evidence as LGMC #1 in globo.

Mr. Comeaux also explained the distinction between the medical services

provided to Mr. Hill by LGMC and those provided to Mr. Hill by his treating

physicians. Mr. Comeaux clearly stated that the bills from LGMC were for

medical services rendered by LGMC and not for any of the medical services

provided by his treating physicians. Mr. Comeaux testified he had no knowledge

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of why Mr. Hill’s physicians allegedly failed to communicate with him. He further

testified that LGMC was not responsible for any part of Mr. Hill’s medical

treatment by his physicians and had no responsibility for what physician was

supposed to do in connection with treatment rendered to a patient such as Mr. Hill.

Counsel for LGMC rested its case.

Mr. Hill then presented his argument to the trial court and reiterated his

claim that he should not be required to pay for test results he allegedly had not seen,

and which had not been explained to him by his physicians. He did not dispute

that he went to LGMC where the tests were performed and for which the bills were

allegedly outstanding. However, he claimed he was never told the results and

therefore was “left in the blind and all I get is the bill.”

On cross-examination, Mr. Hill was unable to remember the names of his

doctors, except for Dr. Milton Jolivette. He claimed that he had contacted the

offices of his doctors by phone and had spoken with nurses. He claimed that he

never received a call back or any information about the results of the tests that

were ordered by the doctors and performed at LGMC. The trial court asked Mr.

Hill for copies of the EOBs from his insurer. Mr. Hill stated he did not have the

correct copies, but they were provided to Mr. Hill and the trial court by opposing

counsel. Mr. Hill identified the EOBs as the copies of the documentation he

received from his insurer, Blue Cross PPO, in connection with LGMC’s claim.

The EOBs were then submitted into evidence as Plaintiff’s #2 in globo by the trial

court on behalf of LGMC.

The trial court then summarized Mr. Hill’s argument after the close of

evidence as follows, “Mr. Hill argues that he received bills, he went to a hospital,

laid on a table, et cetera … received bills, but has no proof that the tests were ever

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done other than he was told to lay on this table. So would you please address this

argument?”

Counsel for LGMC responded, “Yes Judge. First of all, this is the first time

he’s - - he’s ever raised that defense and we can’t prove a negative that - - that

these - - these tests were - - were not conducted. The tests in fact were conducted

and sent to his physician, Judge, and - -”

The trial court then stated, “Well, your - - we don’t know whether they were,

because your witness testified that he didn’t know. And he did raise this exact

defense in his answer. That he doesn’t hear - - didn’t hear from anyone.” To

which counsel for LGMC responded, “That he didn’t hear from his physicians.”

The trial court then further summarized what it found to be Mr. Hill’s

contention, “We know the billing got done. But, we don’t know actually if the test

was successfully administered. If it wasn’t successfully administered, he doesn’t

owe the money. That’s his position and I have to say that makes sense to me.”

The trial court’s framing of the issue then led to a discussion between the

trial court and counsel for LGMC on the burden of proof in an open account case:

THE COURT:

I’m still here with - - I don’t have any proof other than test[s]
were ordered, a charge was made, he laid on a table, but I have no
proof that actual services were rendered. I just don’t have it.

MR. MCCARTHY:

And Judge, again, I - - I don’t feel that’s the plaintiff’s
burden. I think that’s the burden of the defendant and for him
to speculate that this could or could not have happened. He
should have brought some evidence in, because it’s his burden.

THE COURT:

Well, I don’t agree that it’s his burden. I believe it’s your
burden and it’s your hospital. I mean, the people who have the

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evidence of whether the tests were performed correctly is you.
Those physicians are part of you.

A discussion then ensued concerning whether the physicians who had

treated Mr. Hill were in fact employed by LGMC such that LGMC would have

access to the information that the tests in question were performed. At this

juncture the trial court stated:

Okay. Well - - though the Court can’t take official notice of
that, mean, I don’t think I can. He (Dr. Jolivette) happens to be my
personal physician and he is employed by Lafayette General. So, I - -
I do know that. I don’t know who else is employed by Lafayette
General. I just know that you all employ doctors. So, assuming that
those doctors are under the employ of Lafayette General, Mr.
McCarthy can get them to give you [Mr. Hill] what you want.

Mr. Hill then agreed that if he could find out the information about his

health, he would “come to some type of agreement. I won’t - - I won’t pay the full

service.” The trial court then responded, “Okay. Then what I’m going to do is I

am going to dismiss this suit and I’m presuming they’re going to file an appeal - -”

to which counsel for LGMC responded “Yes, Ma’am.”

The trial court then stated, “I’m dismissing it on grounds that there is no

proof that any services were actually rendered.” A judgment dismissing LGMC’s

suit on open account was signed on September 20, 2017. The trial court added in

script to the judgment of dismissal that “plaintiff rested case without submitting

proof by a preponderance of evidence.” LGMC timely appealed the trial court’s

September 20, 2017 judgment of dismissal.

ASSIGNMENTS OF ERROR

LGMC assigns the following errors on appeal:

A. The Trial Court erred in finding that LGMC did not meet its
burden of proving its claim for non-payment of medical
services to defendant Hill.

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B. The Trial Court erred in finding that LGMC had the burden to
negate Hill’s affirmative defense despite Hill’s failure to meet
the burden of proving such affirmative defense.

C. The Trial Court erred in finding that Hill’s physicians were
employed and/or controlled by LGMC.

LAW AND DISCUSSION

Standard of Review

In Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-

McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115-

16, the supreme court reiterated the duty of appellate courts in a manifest error

review and stated in pertinent part:

In all civil cases, the appropriate standard for appellate review
of factual determinations is the manifest error-clearly wrong standard,
which precludes the setting aside of a trial court’s finding of fact
unless that finding is clearly wrong in light of the record reviewed in
its entirety. Cenac v. Public Access Water Rights Ass’n, 02-2660, p. 9
(La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may
not merely decide if it would have found the facts of the case
differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04),
874 So.2d 90, 98. Rather in reversing a trial court’s factual
conclusions with regard to causation, the appellate court must satisfy a
two-step process based on the record as a whole: there must be no
reasonable factual basis for the trial court’s conclusion, and the
finding must be clearly wrong. Stobart v. State through Dept. of
Transp. and Development, 617 So.2d 880, 882 (La.1993).

This test requires a reviewing court to do more than simply
review the record for some evidence, which supports or controverts
the trial court’s findings. The court must review the entire record to
determine whether the trial court’s finding was clearly wrong or
manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La.
2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review
is not whether the judge or jury was right or wrong, but whether the
judge’s or jury’s factfinding conclusion was a reasonable one. Rosell
v. ESCO, 549 So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283
So.2d 716, 724 (La.1973).

Errors of law, however, are reviewed de novo. Foti v. Holliday, 09-93 (La.

10/30/09), 27 So.3d 813. Accordingly, when reviewing an issue of law, we

6

“render[ ] judgment based on the record without deference to the legal conclusions

of the lower courts.” Id. at 817

Assignment of Error Number One

On appeal, LGMC claims the trial court erred in finding that it failed to meet

its burden of proof in proving its claim for medical services provided to Mr. Hill.

We agree and find for the following reasons that LGMC carried its burden of proof

on the action for an open account against Mr. Hill by a preponderance of the

evidence.

Louisiana Revised Statutes 9:2781(D) defines an open account as follows,

‘“[O]pen account’ includes any account for which a part or all of the balance is

past due, whether or not the account reflects one or more transactions and whether

or not at the time of contracting the parties expected future transactions.” To prove

a claim in an action on an open account, a panel of this court held:

[P]laintiff first must prove the account by showing that the record of
the account was kept in the course of business and by introducing
supporting testimony regarding its accuracy. Once a prima facie case
has been established by a plaintiff-creditor; the burden shifts to the
debtor to prove the inaccuracy of the account or to prove that the
debtor is entitled to certain credits.

Bieber-Guillory v. Aswell, 98-559, p.6 (La.App. 3 Cir. 12/30/98), 723 So.2d 1145,

1149 (quoting Broussard v. Guilbeaux, 93–1353, p. 4 (La.App. 3 Cir. 5/4/94); 640

So.2d 509, 512).

The record before us on appeal shows that LGMC provided the necessary

evidence to support its claim on an open account and carry its burden of proof. The

undisputed testimony of LGMC’s financial officer, Mr. Comeaux, provided that

the records of the three bills reflecting medical services to Mr. Hill were kept in the

regular course of business. Further, Mr. Comeaux’s testimony also provided the

7

required accuracy of the billing records, as he specifically discussed the three bills,

explained the payments made by Mr. Hill’s insurer, and explained the balance

owed by Mr. Hill on the accounts. All supporting documentation for Mr.

Comeaux’s testimony was admitted into evidence without objection.

LGMC argues that Mr. Hill’s affirmative defense that he never received the

results of his testing done at LGMC from his treating physicians, or the additional

defense that there was a problem with the testing which precluded his receiving the

results, is governed by La.Code Civ.P. art. 1005 and is an allegation of a failure of

consideration. Louisiana Code of Civil Procedure Article 1005 states:

The answer shall set forth affirmatively negligence, or fault of
the plaintiff and others, duress, error or mistake, estoppel,
extinguishment of the obligation in any manner, failure of
consideration, fraud, illegality, injury by fellow servant, and any other
matter constituting an affirmative defense. If a party has mistakenly
designated an affirmative defense as a peremptory exception or as an
incidental demand, or a peremptory exception as an affirmative
defense, and if justice so requires, the court, on such terms as it may
prescribe, shall treat the pleading as if there had been a proper
designation.

Despite Mr. Hill’s contention in his pleadings that he had never received any

test results from his physicians, it is undisputed that he went to LGMC and

underwent the testing ordered by his treating physicians. Other than his testimony

that he called his physicians to obtain this information, he could not dispute that

the testing for the three bills at issue was done at LGMC.

The trial court found, with no evidence to support such a finding, that there

may have been a problem with the tests performed, and that was the reason Mr.

Hill was never informed by his doctors of his test results. Accordingly, without

testimony from LGMC that the tests were actually performed, the trial court found

8

that LGMC failed to carry its burden of proof that Mr. Hill owed outstanding

balances on the three bills for the medical services performed at LGMC.

It is well settled that once the plaintiff-creditor in a claim on an open account

has established that a proper “record of the account was kept in the course of

business and by introducing supporting testimony regarding its accuracy,” a prima-

facie case has been established, and the “burden shifts to the debtor to prove the

inaccuracy of the account or to prove that the debtor is entitled to certain credits.”

Bieber-Guillory, 723 So.2d at 1149.

We find the trial court committed an error of law in failing to shift the

burden of proof to Mr. Hill to prove the affirmative defenses that he never received

any results of the testing done at LGMC from his treating physicians, and the cause

of this result was some failure that may have occurred in the testing conducted at

LGMC.

Notwithstanding the discussion with the trial court and counsel on the record

at trial, there was no testimony or documentation submitted into evidence by Mr.

Hill that LGMC had any obligation to Mr. Hill to inform him of the test results or

that any of Mr. Hill’s doctors were employed by LGMC and could be ordered to

report the test results to Mr. Hill. Further, the billing for the medical services at

issue did not include any charges for interpretation of the test results, as that

responsibility lies squarely with the treating physicians.

For the foregoing reasons we reverse the judgment of the trial court

dismissing LGMC’s claim on an open account against Mr. Hill. Having found that

LGMC established its claim in the amount of $2,571.48, we pretermit any further

discussion of LGMC’s remaining two assignments of error.

9

We will now address LGMC’s prayer in their petition for attorney fees,

judicial interest, court costs, and other costs associated with the attempted

collection of the open account owed by Mr. Hill to LGMC.

Judicial Interest, Attorney Fees, Court Costs, and Other Costs

In its petition, LGMC sought judicial interest from the date each obligation

became due pursuant to La.Civ.Code art. 2000, which provides in pertinent part:

When the object of the performance is a sum of money,
damages for delay in performance are measured by the interest on that
sum from the time it is due, at the rate agreed by the parties or, in the
absence of agreement, at the rate of legal interest as fixed by [La.]R.S.
9:3500.

Therefore, we award LGMC legal interest calculated as fixed by La.R.S.

9:3500 from the date each obligation on the three separate bills became due: June 4,

2014 - $168.00; June 13, 2014 - $623.86; and June 16, 2014 - $1,778.82.

LGMC also sought a minimum attorney fee of 33 1/3 %, or $500.00,

whichever is greater, pursuant to La.R.S. 9:2781(A), which provides in pertinent

part:

When any person fails to pay an open account within thirty
days after the claimant sends written demand therefor correctly setting
forth the amount owed, that person shall be liable to the claimant for
reasonable attorney fees for the prosecution and collection of such
claim when judgment on the claim is rendered in favor of the claimant.

Accordingly, we award LGMC attorney fees of $825.74, which reflects 33

1/3 % of the $2,571.48 outstanding balance owed by Mr. Hill.

LGMC also sought “all court costs and other costs associated with the

collection of the underlying debt whether incurred in this court or another venue

and/or jurisdiction.” In reversing the trial court and finding that Mr. Hill is

responsible for the payment of $2,571.48 to LGMC for medical services rendered,

all court costs are assessed to Mr. Hill. Considering the dismissal of LGMC’s

10

claim on open account against Mr. Hill by the trial judge, no evidence was

submitted or proffered by LGMC of the additional costs associated with the

collection of the underlying debt. Based on the lack of evidence before us in the

record, we are unable to make an award to LGMC for those costs.

CONCLUSION

Considering the foregoing, we reverse the trial court’s judgment of

September 20, 2017 dismissing the claim on open account filed on behalf of

Lafayette General Medical Center against Richard Hill and award Lafayette

General Medical Center the claimed amount of $2,571.48 against Richard Hill,

together with attorney fees in the amount of $825.74, judicial interest from the date

each obligation became due, and all court costs. All costs of this appeal are

assessed to Richard Hill.

REVERSED AND RENDERED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2-16.3.

11

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

17-971

LAFAYETTE GENERAL MEDICAL CENTER, INC.

VERSUS

RICHARD HILL

COOKS, J., Dissents

In this suit on open account, LGMC filed suit in Lafayette City Court to

collect the unpaid balance on an open account for certain medical services. The

trial judge dismissed LGMC’s action finding it failed to prove that any of the

services billed for were actually rendered. The trial court stated “I don’t have any

proof other than test[s] were ordered, a charge was made, he laid on a table, but

I have no proof that actual services were rendered.” I totally agree. The

majority places emphasis on the notion that Hill “did not dispute that the medical

tests were actually performed.” But the question is not whether Hill presented

himself for the tests and someone turned the machine on. The pivotal issue here is

that Hill has called into question whether any test results were actually obtained,

i.e., did the equipment work or will the tests have to be redone? Hill is refusing to

pay for something that he has no reason to believe at this point exists. As Judge

Boullion told the parties, Hill is more than willing to pay his bill if he is shown that

the tests actually produced results. Hill was waiting all this time to find out if his

cancer has returned. LGMC did not offer any evidence that the tests were actually

successfully performed and did not offer into evidence even the contract on

which its collection suit on open account was allegedly based. Its witness candidly

admitted he had no evidence to present and no knowledge to offer at trial except

1

for some billings. LGMC asserted Hill had the burden to prove the services were

not rendered. The trial judge disagreed and so do I. The trial judge said: “Well, I

don’t agree that it’s his burden. I believe it’s your burden and it’s your hospital. I

mean, the people who have the evidence of whether the tests were performed

correctly is you. Those physicians are part of you.” The majority says the burden

shifted to Hill to prove that some or all of the tests were not performed simply

upon the showing by LGMC that a bill was sent and remains unpaid. This is not

enough to establish LGMC’s prima facie case and the burden did not shift to Hill.

LGMC’s counsel argued “when there’s a contract for services provided and

a prima facie showing the contract was entered into then it’s the burden upon the

person claiming the breach of that obligation to prove it.” LGMC’s attorney says

he made “a prima facie case” that a contract for services was entered into. He

made no such showing. If Hill signed any agreement with LGMC making him

responsible for the charges LGMC failed to introduce such a document. In Bieber-

Guillory 98-559 p. 7 (La.App. 3 Cir. 12/30/98), 723 So.2d 1145, 1149-50

(emphasis added) this court explained:

This required showing [that an open account exists] by the
Plaintiff presupposes the existence of an enforceable contract between
the parties. “For there to be an action on an open account, there
must necessarily be a contract which gave rise to the debt.”
Blackie’s Rental Tool & Supply v. Vanway, 563 So.2d 350, 353
(La.App. 3 Cir.1990). A creditor suing on open account must prove
that the debtor contracted for the sales on open account. Id.;
Advertiser Div. v. Southwest Mortg. & Inv., 424 So.2d 1284 (La.App.
3 Cir.1982). When there is no meeting of the minds between the
parties, there is no consent, thus no enforceable contract. La.Civ.Code
art.1927. Such that, if there is no enforceable contract, the
Plaintiff’s attempt to prove the existence of an open account by
establishing a prima facie case becomes extraneous.

LGMC’s counsel believes, and the majority agrees, he made a prima facie

showing of a contract merely by submitting evidence that LGMC billed Hill’s

2

insurance company for some tests. Hill admits only that he laid on a table to have

some tests done but he also says he has no knowledge if any of those tests were

actually performed. He says he would pay for the charges incurred if actual testing

occurred. LGMC’s attorney maintains, and the majority asserts, Hill must pay for

the tests if LGMC merely shows that he showed up to have the tests done. Other

than counsel for LGMC’s “testimony,” there is no evidence of a contract with

LGMC and what the terms of the contract were regarding transmission of the

results and re-testing if the initial testing was unsatisfactory. Comeaux testified he

assumed doctors ordered the tests and sent Hill to be tested. Hill testified the tests

were ordered by doctors. It may be that at some point in this process Hill signed a

document making him personally responsible for paying any charges incurred for

the tests, but no such document was introduced as evidence. I do not believe

LGMC met the threshold proof that there is even a contract with Hill upon which it

can make an open account claim. But even if the court could properly find LGMC

may proceed on open account it has not made a prima facie showing that it is

entitled to collect.

To collect on its open account LGMC had to show more than “a contract

was entered into.” It had to show that (1) actual services were provided to Hill,

(2) he was billed for services actually performed/delivered, and (3) after notice he

has failed to pay for the services rendered. Just showing a contract was “entered

into” does not make a prima facie case that services were rendered for which the

recipient of the services must pay. The majority cites our decision in Bieber-

Guillory to establish what is needed to prove a claim on an open account:

“[P]laintiff first must prove the account by showing that the record of the account

was kept in the course of business and by introducing supporting testimony

3

regarding its accuracy.” This means that in this case LGMC had to prove the

existence of the account, i.e. it had to prove (1) it rendered or delivered certain

services; (2) it billed a certain amount for those services; (3) Hill has an unpaid

balance; and (4) the billing and balance due is accurate. LGMC could do this by

presenting to the court its records kept in the normal course of operating its

business and supporting testimony by someone from LGMC that shows those

records are accurate. LGMC failed to do item (1) in this case. LGMC only

introduced the billing for certain services and put on testimony by Comeaux from

its financial department that these bills were accurate. But it did not complete the

proof of the account because it failed to present any document kept in the normal

course of its operation to show that the tests were actually successfully performed

such that the tests produced results that could be sent to and used by Hill’s doctors.

It could have introduced a copy of the test results or at least a letter transmitting the

results to Hill or his doctor(s). It did not, and that failure is dispositive. I note that

LGMC did introduce a form signed by Hill authorizing LGMC to use any medical

information obtained from the tests. It was not for any lack of authorization by

Hill that no results have been sent to anyone.

The trial judge stated “[Mr. Hill] has no proof that the test[s] were ever

done, other than he was told to lay on this table” (emphasis added). When she

asked LGMC’s counsel to respond to that he simply replied “… the test[s] were

conducted,” but offered no evidence to prove the attorney’s “testimony.” The trial

judge responded “Well—we don’t know whether they were because your

witness testified that he didn’t know.” She added “We know the billing got

done. But, we don’t know actually if the test was successfully administered. If it

wasn’t successfully administered, he doesn’t owe the money.” I agree.

4

When LGMC’s witness, Mr. Comeaux, was asked: “Can you find out if the

test came out? What was the result of the tests?” he responded, “Yes,” and then

explained he did not have such records with him. This is part of the missing

evidence crucial to LGMC’s prima facie case. If the tests were successfully

performed there may well be a document generated in the normal business

practices of LGMC that would show the results of the various tests or procedures.

LGMC could have presented such evidence, or at least have presented a transmittal

of the test results to Hill and/or his doctors. Such a letter would be the bare

minimum to establish a prima facie case that the tests were actually successfully

administered. But there was no such evidence offered here and LGMC’s only

witness said he did not know.

The majority states Hill “received medical services from LGMC on three

separate occasions . . .” (emphasis added) He reaches that conclusion because:

“Mr. Hill admitted that he went to LGMC for tests ordered by his doctors and was

seen by LGMC’s staff.” But the record shows only, as the trial judge noted, that

tests were ordered, Hill laid on a table, charges were billed. LGMC failed to

offer any evidence that any of the tests were actually performed, i.e it failed to

show that Hill actually “received medical services.” LGMC’s sole witness, Mr.

Comeaux, testified he only had knowledge that a claim was filed with Hill’s

insurance company for the bills generated by the hospital and that there is an

outstanding balance due. Comeaux had no knowledge of who ordered the tests,

whether the tests were actually performed successfully, or for that matter, at

all, and whether there were any results available to be sent to Hill’s treating

physicians. Hill testified he had no way of knowing whether the machines worked

when he laid on the table or whether the tests needed to be re-done. That

5

testimony is beyond dispute. All he knows is that no one has ever contacted him

regarding any of the tests for which he is being billed and LGMC never sent him,

or, to his knowledge, his doctors, any results of the tests. As of the date of trial Mr.

Hill was still waiting to know whether the equipment actually worked, and if it did,

what did the results show concerning the possibility that his prostate cancer has

returned. I too, would refuse to pay for these tests under such circumstances, and

rightfully so. If LGMC has results from these tests it is a simple matter to present

them to Hill so that he and his doctors can know if his cancer has returned. He

says he will pay if they just do that. I do not think that is too much to ask.

This case presents similar facts to those addressed by the appellate court in

Cline v. George Kellett & Sons, Inc., 96-456 (La.App. 5 Cir. 11/14/96), 685 So.2d

206. In that case, Cline decided to build a house and needed some lumber. Kellett

delivered some lumber to Cline and billed him. Cline refused to pay the full

amount billed asserting, among other reasons, that he did not receive all of the

lumber for which he was billed. Kellett’s vice-president and general manager,

Dale P. Bernard, testified regarding the normal procedures for delivery and

invoicing. He presented an invoice which purported to show the amount of lumber

delivered and the price. But these invoices did not have any indicators on them

that would ordinarily show that delivery of the disputed amount of lumber actually

occurred, or that would at least make a prima facie showing that delivery was

made. Bernard, like Comeaux in this case, admitted “he did not actually know

whether the materials were delivered and received at the job site.” Plaintiff argued

in Cline “that proof of actual delivery is not required in order to make out a prima

facie case.” The appellate court rejected that argument in Cline explaining that

“proof of actual delivery is not required ‘[i]n a suit on open account, where the

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record shows that books were kept in the normal course of business and

indicated that merchandise has been sold and delivered.” Entron v. Callais

Cablevision, 307 So.2d 787, 793-94 (La.App. 1 Cir. 1975). In the instant case the

delivery ticket in question deviates from the procedure used in Kellett’s normal

course of business and does not show by its own procedures that these items

were delivered.” Cline, 685 So.2d at 208 (emphasis added and in original). In the

present case it may be that records exist which would make the required showing

but they were not introduced at trial. Comeaux testified he did not have such

records with him. The Plaintiff in Cline argued that in a previous case before the

first circuit “ledger cards or statements of the account were sufficient to establish a

prima facie case” but the court pointed out in that case “the delivery tickets were

signed by the defendant,” thus on their face making a prima facie case of delivery,

and all the records introduced on the account “had been made under [the witness’]

supervision and control.” The appellate court contrasted that to Bernard’s

testimony and evidence in Cline that showed “[Bernard] did not know whether the

items were delivered and could only ‘surmise’ the items had been left at the job

site.” In other words, Bernard could only speculate that the goods billed for were

actually delivered. The documents in Cline showed only what was purportedly

owed but contained nothing to make a prima facie showing that the lumber was

actually delivered. The same thing is true in this case. The documents submitted

by LGMC only show the amount owed and have nothing on them indicating the

services were actually performed. The court in Cline concluded it could not say

the trial judge manifestly erred in finding Kellett failed to meet its burden of

proving a prima facie case. The court further found this meant the burden never

shifted to Cline requiring him to rebut the Plaintiff’s evidence, i.e. Cline did not

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have to prove delivery as some sort of affirmative defense. The same is true here.

The witness called in this case, Comeaux, and the documents he presented, only

show that LGMC sent a bill to Hill’s insurance company. Nothing in Comeaux’s

testimony or in any evidence presented by LGMC shows that any of the tests were

actually performed and produced results. Neither does LGMC present any

evidence showing the results were reported to Hill or any physician. If any records

kept in the normal course of business by LGMC had been introduced to show that

test results were sent to someone that would have completed the necessary

showing by LGMC to establish its prima facie case. But no such testimony or

evidence was presented. The only thing Comeaux could testify to was LGMC’s

efforts “to contact a patient to let them know they’ve got an outstanding balance

and try to get them to pay the obligation.” No witness was called, nor was any

document introduced to show that LGMC made any effort to send test results to

Hill or his doctors, or, for that matter, whether there actually was any information

to be sent. As the trial judge remarked, Comeaux “just deals with the finances.”

As I have stated, there may well be records in the possession of LGMC, kept in the

normal course of its operations, that would indicate the tests were actually and

successfully performed, and produced reportable results. But no such records

were introduced.

LGMC failed to make a prima facie case, thus, Hill was not required to

offer any affirmative defense or rebuttal evidence. Hill did, however, offer

testimony that the trial judge said she believed to the effect that he had received

nothing in any way indicating to him that any of the tests he presented himself for

actually produced any results that could be reported to him or his doctors. As he

said, he had “no idea if the test[s] came out” and “no idea what went on.” More

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compelling is Hill’s testimony that points out “for all he knows [he] could have

been in a dying stage [of prostate cancer],” and as he said: “Surely, you know,

someone could have called and said ‘Mr. Hill, we have the results that we ordered.’

At that point, I would feel I’m obligated . . . I’m left in the blind and all I get is a

bill.” Hill would feel obligated at that point because he would then know that the

machines worked and actually produced results. The trial judge correctly

concluded LGMC failed to present a prima facie case.

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