author: |, CARAWAY, J.

text:
    Faye CAMPBELL, Debbie Ann Campbell Watts, and Nelda Campbell Harmond, Plaintiffs-Appellants, v. HOSPITAL SERVICE DISTRICT NO. 1 CALDWELL PARISH d/b/a Citizens Medical Center and Dr. Henry H. Nguyen, Defendants-Appellees.
    No. 37,876-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Street & Street, by D. Randolph Street, Monroe, for Appellants.
    Watson, Blanche, Wilson & Posner, by P. Chauvin Wilkinson, Jr., Baton Rouge, for Appellee, Citizens Medical Center.
    Blue Williams, L.L.P., by Kurt S. Blankenship, Robert I. Baudouin, Metairie, for Appellee, Dr. Henry Nguyen.
    Before BROWN, CARAWAY and MOORE, JJ.
   |, CARAWAY, J.

The wife and two daughters of an emergency room patient filed this medical malpractice and wrongful death suit against the hospital and emergency room physician. The patient/decedent presented in the emergency room with chest pains from unstable angina. Within two hours of his hospitalization and after he was admitted into intensive care, he had a massive heart attack. Plaintiffs assert that the heart attack could have been avoided or its effect lessened by the defendants’ administration of anti-coagulant drugs. Following a trial, the jury determined that no malpractice had occurred, and the plaintiffs appeal. Finding neither manifest nor legal error warranting reversal, we affirm.

Facts

At approximately 8:15 p.m. on May 21, 1995, seventy-eight year old Eugene Campbell was taken to the Citizens Medical Center (“Citizens”) emergency room in Columbia, Louisiana, due to his complaints of chest pain radiating into the jaw and arms. Mr. Campbell was sweating and short of breath. Dr. Henry Nguyen, a contract emergency room physician and otolaryngologist (“ENT”) resident, attended Mr. Campbell.

The hospital records indicate that Mr. Campbell was first given nitroglycerin, a drug used to alleviate chest pain, at 8:30 p.m. Thereafter, Dr. Nguyen ordered a cardiac enzyme test and an EKG. The EKG was performed at 8:32 p.m. and interpreted by Dr. Nguyen as reflecting “some ST segment elevation” which he classified as non-specific. The medical evidence disclosed that an elevated or “cov-ing” ST wave can indicate recent blockage restricting blood flow to the heart. The cardiac enzyme tests were negative. The expert medical testimony indicated that the cardiac enzyme test, which examines heart tissue, shows whether an individual has had a heart attack. Mr. Campbell was again administered nitroglycerin at 8:35 and 8:40 p.m.

Initially, Dr. Nguyen diagnosed Mr. Campbell with new onset unstable angina and ruled out a heart attack. Dr. Nguyen opted to admit his patient to the intensive care unit (“ICU”) for observation. The medical evidence described unstable angina as the opening and closing of a patient’s artery due to the formation of a new clot. The chest pain is caused by inadequate blood flow during the periodic closing of the artery. Dr. Nguyen recalled that Mr. Campbell reported recurring chest and arm pains every thirty minutes. A heart attack occurs when the artery is fully closed by the clot, resulting in heart muscle damage due to the lack of blood flow.

While Mr. Campbell was in the emergency room, Dr. Nguyen did not administer heparin or aspirin. The expert testimony described these drugs as anticoagulants that may assist in stopping clot growth in unstable angina patients, although they do nothing to reduce the size of already-existing clots.

The attending nurse, Cherry Evans, reported that Mr. Campbell was given morphine for pain at 9:10 and 9:40 p.m. per Dr. Nguyen’s verbal orders. Dr. Nguyen did not recall those events regarding the morphine. Mr. Campbell was admitted to ICU at about 9:45 p.m. with Nurse Evans assisting him. Nurse Evans noted that Mr. Campbell was alert and oriented and described Mr. Campbell’s appearance, both in the emergency room and ICU, as cool, clammy and pale. Nurse Evans asked Mr. Campbell several times if he was having any pain. Several times the patient denied any pain. Mr. Campbell began receiving oxygen in the ICU through a nasal cannula.

Because Dr. Nguyen had no hospital admitting privileges as an emergency room physician, he set up the initial ICU transfer order under the admitting privileges of Dr. Thompson. Dr. Nguyen testified that it was his normal procedure to then contact the admitting physician. Dr. Nguyen testified that due to the series of events, he was never able to speak with Dr. Thompson after Mr. Campbell’s admission to ICU. However, a family witness recalled that Nurse Evans had talked with Dr. Thompson.

Dr. Nguyen again visited with Mr. Campbell at approximately 10:02 p.m. During that visit, immediately before the heart attack, Dr. Nguyen noted that his patient was alert and responsive, had a stable blood pressure and indicated no pain. Likewise, his observation of the cardiac monitor indicated no change in Mr. Campbell’s ST wave elevation. Also, Dr. Nguyen testified that Mr. Campbell did not appear cool, clammy or ashen in color at either the last visit at 10:02 p.m. or earlier in the emergency room.

Nevertheless, at 10:05 p.m., Mr. Campbell experienced an acute anterior heart attack that precipitated cardiac arrest. A code blue was instituted and Mr. Campbell was successfully resuscitated by the hospital staff and Dr. Nguyen at approximately 10:15 p.m. Thereafter, Dr. Nguyen contacted Dr. Emile Barrow, a cardiologist at St. Francis Medical Center in Monroe, Louisiana. At Dr. Barrow’s instruction, Dr. Nguyen administered heparin and Ac-tivase to Mr. Campbell sometime around 10:50 p.m. The medical testimony described Activase as a “clot busting” drug which works to dissolve all blockage in the artery. At the time of Mr. Campbell’s heart attack, Activase was administered only after the heart attack due to the “treacherous” risks attendant to the use of the drug prior to a heart attack.

The hospital records show that Dr. Nguyen checked in on Mr. Campbell at 11:45 p.m. and noted that he was then “alert and responsive” and followed commands. At approximately 12:25 a.m., Mr. Campbell was transferred to St. Francis Medical Center in Monroe, where he remained under the care of a cardiologist for several weeks. Thereafter, he was placed in a nursing home facility because of his inability to care for himself after his heart attack. He died on March 19, 1996.

On December 10, 1997, a medical review panel unanimously determined that the hospital and Dr. Nguyen met the applicable standards of care in the treatment of Mr. Campbell. Thereafter, Mrs. Faye Campbell and her two daughters, Debbie Ann Watts and Nelda Harmond (“Plaintiffs”), instituted the present suit. Upon the jury’s rejection of their claims, this appeal ensued.

Discussion

I.

On appeal, plaintiffs first argue various specifications of error concerning trial errors which they contend warrant reversal of the jury verdict and de novo review by this court. In the first argument, plaintiffs contend that the verdict form presented to the jury was confusing, complicated and legally wrong. Specifically, plaintiffs take issue with the use of the phrase “under similar circumstances” in reference to the plaintiffs’ burden of proof as to the standard of care required of both Dr. Nguyen and the hospital. Plaintiffs contend that this phrase erroneously included the “locality rule,” or a comparison of physicians or facilities in the same community or locale, in the determination of the applicable standard of care.

La. R.S. 9:2794 makes a distinction between the specialist and those physicians not practicing in a particular specialty. The non-specialist’s duty requires that degree of skill or care “exercised by physicians” “practicing in a similar community or locale and under similar circumstances.” La. R.S. 9:2794(A)(1). The specialist, on the other hand, is held under the statute to the degree of care ordinarily practiced by physicians within his medical speciality. Ardoin v. Hartford Accident and Indemn. Co., 360 So.2d 1331 (La.1978); Taylor v. Sauls, 99-1436 (La.App.3d 9/6/00), 772 So.2d 686, writ denied, 99-2802 (La.12/8/00), 776 So.2d 461. The plaintiffs correctly assert in their brief that Dr. Nguyen was acting as an emergency medical room specialist which has been recognized as a specialty by this court. Iseah v. E.A. Conway Memorial Hosp., 591 So.2d 767 (La.App. 2d Cir.1991), unit denied, 595 So.2d 657 (La.1992). Therefore, the locality rule does not apply, and a jury interrogatory requiring the application of the locality rule would be incorrect.

Misleading or confusing interrogatories, or interrogatories which do not adequately set forth the issues to be decided by the jury, may constitute reversible error. Ford v. Beam Radiator, Inc., 96-2787 (La.App.2d Cir.2/20/98), 708 So.2d 1158; Norfolk Southern Corp. v. California Union Ins. Co., 02-0369 (La.App. 1st Cir.9/12/03), 859 So.2d 167. Nevertheless, the verdict form may not be set aside unless the form is “so inadequate that the jury is precluded from reaching a verdict based on correct law and facts.” Ford v. Beam Radiator, Inc., supra; State, DOTD v. McMillion Dozer Service Inc., 93-590 (La.App. 5th Cir.5/31/94), 639 So.2d 766, writs denied, 94-2345, 94-2348 (La.11/29/94), 646 So.2d 399, cert. denied, 514 U.S. 1108, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995).

The law is equally clear that the failure to make a contemporaneous objection to either jury interrogatories or a verdict form precludes a party from raising the issue for the first time on appeal. Kose v. Cablevision of Shreveport, 32,855 (La.App.2d Cir.4/5/00), 755 So.2d 1039, writ denied, 00-1289 (La.6/16/00), 765 So.2d 340. Moreover, the objection must be specific to allow the trial judge a fair opportunity to correct any error before jury deliberations. Kose v. Cablevision of Shreveport, supra; Luman v. Highlands Ins. Co., 25,445 (La.App.2d Cir.2/23/94), 632 So.2d 910. It is only when jury instructions or interrogatories contain a “plain and fundamental” error that the contemporaneous objection requirement is relaxed and appellate review is not prohibited. Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708, at 716, fn. 5; Alcorn v. City of Baton Rouge ex rel. the Baton Rouge Police Dept., 02-0952 (La.App. 1st Cir.6/27/03), 851 So.2d 1194; Etcher v. Neumann, 00-2282 (La.App. 1st Cir.12/28/01), 806 So.2d 826, writ denied, 02-0905 (La.5/31/02), 817 So.2d 105.

From our review of the record, we find that plaintiffs’ objection to the jury interrogatories was general and imprecise. Second, the use of the very general phrase, “under similar circumstances,” does not expressly utilize the locality rule language as set forth in La. R.S. 9:2794. Finally, and most importantly, the evidence at trial presented no factual dispute regarding a lower standard of care applicable to physicians in Columbia which might have allowed the jury to apply the locality rule to the detriment of the plaintiffs. As discussed below, the parties offered competing testimony of cardiologists and emergency room experts only. Therefore, a fact issue regarding a local standard of care was not present. Accordingly, this assignment of error lacks merit.

Plaintiffs next complain that the trial court committed legal error in allowing the jury to begin deliberations at 9:00 p.m., on a Saturday evening, after approximately twelve hours of proceedings on the day of deliberation and six total days of trial. Plaintiffs contend that justice was not served by giving the complicated, multi-faceted case to the exhausted jury at that late hour.

On Saturday, December 21, 2002, the last day of trial, the jury convened at 9:09 a.m., recessed from 10:35 a.m. until 11:07 a.m. and took a lunch break from 12:10 a.m. until 2:44 p.m. At 4:12 p.m., the court took a twenty-five minute recess, reconvening at 4:38 p.m. until 5:26 p.m., when the completion of evidence occurred and the jury recessed for dinner. The Injury heard closing arguments at 7:00 p.m., began deliberations at 9:03 p.m. and returned a verdict at 11:32 p.m.

After completion of the presentation of evidence, counsel and the trial judge gathered for a jury charge conference. At 6:49 p.m., before the jury returned, counsel objected to the proposed jury charges. At that time, counsel for plaintiffs also moved to recess and reconvene for jury deliberations the next afternoon due to the late hour. At the objection, the court noted that it had “promised this jury yesterday we would finish this today. And I have seen the juries in the past, at times, get cases at 7 p.m. and decide it at midnight and come out with what I perceived as a just verdict.” The court decided to “proceed, unless — I’ll give them that general admonition, and if they vociferously oppose staying any later tonight, I’ll consider coming back tomorrow.” When the jury returned to the courtroom, the trial judge addressed the jury as follows:

Members of the jury, I apologize for the hour. It certainly has been no one’s fault. I promised you all yesterday that we would finish this today. And unless I hear very strenuous objections, that’s still my plan. Is that a problem? All right. Plaintiff, you may, give your closing argument.

Regarding the choice of the time of day for jury deliberations, the jurisprudence has accorded the trial court great discretion in directing the proceedings before it and has concluded that a trial judge does not err by simply trying to accommodate the jury. Calvet v. Graham, 93-1645 (La.App. 3d Cir.7/6/94), 639 So.2d 873, writ denied, 94-2098 (La.11/11/94), 644 So.2d 393; Jackson v. Ed’s Cab Co., 333 So.2d 701 (La.App. 4th Cir.1976), writ denied, 337 So.2d 877 (La.1976). In the criminal arena, the courts have found no deprivation of the right to a fair trial in retiring a jury late in the evening. See, State v. Wright, 445 So.2d 1198 (La.1984) (where the jury was sent to deliberate at 11:00 p.m. rather than waiting until the following day and.returned a verdict at 3:00 a.m.); State v. Mack, 435 So.2d 557 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983) (where jury deliberation began at 10:40 p.m. and ended at 1:50 a.m.). The courts have also approved of late hour deliberations when the trial court afforded the jury the choice of finishing the trial that night or continuing the following morning. Calvet v. Graham, supra; Jackson v. Ed’s Cab Co., supra.

In the present matter, we can discern no abuse of discretion in the trial court’s submission of the case to the jury at 9:00 p.m. Although the trial was undeniably prolonged and required consideration of five days of medical evidence and testimony, the record shows that the jury was never seated in the courtroom until, at the very earliest, after nine in the morning. With ample breaks and recesses on each day of trial, the jury remained in the courtroom for less than five hours. On the final day of trial, the jury heard evidence for approximately 4.75 hours, but recessed over six hours, including a three and one-half hour lunch break and a one and one-half hour dinner break between the completion of evidence and the closing arguments. Finally, when given the choice of continuing that night, the jury chose to complete the trial at the late hour rather than continue it to Sunday. Based upon these facts and plaintiffs’ failure to present proof that the jury’s impartiality was tainted by exhaustion or an inappropriate effort to rush the verdict, we can find no abuse of discretion in the trial court’s choice of time for jury deliberation.

Plaintiffs next contend that the trial court erred in denying their motion to read Mrs. Faye Campbell’s deposition to the jury because she experienced difficulty testifying at trial. After Mrs. Campbell’s direct examination and at the close of cross, plaintiffs’ counsel attempted to introduce the 1996 deposition. At the time of trial in 2002, Mrs. Campbell was eighty years old. Mrs. Campbell testified on direct examination that she recalled no conversation with Dr. Nguyen on the night of her husband’s heart attack. Plaintiffs now argue that she testified in her deposition concerning such a conversation. Plaintiffs’ counsel argued that Mrs. Campbell should be considered “unavailable” under La. C.E. art. 804 and La. C.C.P. art. 1450, so that her deposition could be introduced into evidence in addition to her trial testimony.

La. C.C.P. art. 1450 establishes the guidelines for the use of a deposition at trial. In pertinent part, those provisions allow for the introduction of deposition testimony if the court finds that the witness is unavailable or “upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.” La. C.E. art. 804 addresses hearsay exceptions and, in pertinent part, defines witness unavailability as the situation “when the declarant cannot or will not appear in court and testify to the substance of his statement made out of court.” Such unavailability includes circumstances where the declar-ant testifies to a lack of memory of the subject matter of his statement or is unable to be present to testify at the hearing because of existing physical or mental illness, infirmity or other sufficient cause.

Additionally, La. C.E. art. 612 allows a witness to refresh his or her memory with a writing and the adverse party to introduce into evidence those portions of the writing which refreshed the witness’s memory and to examine the witness thereon.

The above rules of evidence and procedure lend no support to the plaintiffs’ argument. The direct testimony of Mrs. Campbell concluded without presenting any issue regarding her inability to testify or the need for deposition evidence. The record before us reflects a competent witness. Most significantly, when she denied in her testimony that she had spoken with Dr. Nguyen, her counsel did not attempt to refresh her recollection pursuant to La. C.E. art. 612 by reference to the conversation which she purportedly reported in her deposition seven years earlier. The cross-examination of Mrs. Campbell did not mention Dr. Nguyen or any conversation he may have had with Mrs. Campbell, although the defense did use portions of her deposition to refresh her memory regarding the status of her husband’s health after the heart attack. The trial court’s rejection of plaintiffs’ offering of the deposition was, therefore, in accordance with law and within its discretion.

The final trial court error asserted by plaintiffs concerns the admission into evidence of a survey-opinion article from the New England Journal of Medicine (“NEJM”). During the cross-examination of Dr. David Tepper, plaintiffs’ medical expert in cardiovascular diseases and internal medicine, he was questioned about a 1997 NEJM article that included information on the use of aspirin or heparin. At that time, counsel for plaintiffs objected to the admission of the article on the ground that it would mislead or confuse the jury because the article reflected the standard of care in 1997 rather than 1995. The trial court denied plaintiffs’ motion. On appeal, plaintiffs argue that the article should not have been admitted into evidence because it pertained to a survey of research not conducted by the authors.

Because plaintiffs never asserted the issue of hearsay to the trial court, they are precluded from raising it on appeal. URCA Rule 1-3; Risinger v. State Farm Mut. Auto. Ins. Co., 29,023 (La.App.2d Cir.6/18/97), 711 So.2d 293. Moreover, DA Tepper testified that the NEJM was considered an authoritative journal. Therefore, it is not considered hearsay under the La. C.E. art. 803 learned treatise exception to the hearsay rule and can be used by counsel to cross-examine an expert witness. Denton v. Critikon, Inc., 95-1602 (La.App. 1st Cir.5/10/96), 674 So.2d 1169.

II.

Next, plaintiffs challenge the jury’s verdict claiming that the record contains no factual basis for the verdict and that it is manifestly erroneous and should be reversed. Specifically, plaintiffs argue that the expert testimony clearly established that the standard of care for a patient like Mr. Campbell required the administration of heparin and aspirin in the emergency room. They contend that Dr. Nguyen’s failure to follow that standard of care deprived Mr. Campbell of a significant chance of avoiding the heart attack and cardiac arrest that resulted in the dementia which ultimately caused, his death.

To establish a medical malpractice claim, the plaintiff must prove by a preponderance of the evidence the following elements as set forth in La. R.S. 9:2794(A):

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Thus, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiffs injuries resulting therefrom. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228; Strange v. Shroff, 37,353 (La.App.2d Cir.7/16/03), 850 So.2d 1077.

A physician is not held to a standard of absolute precision; rather, his conduct and judgment are evaluated in terms of reasonableness under the circumstances existing when his professional judgment was exercised, and not on the basis of hindsight or in light of subsequent events. Johnston ex rel. Johnston v. St. Francis Medical Center Inc., 35,236 (La.App.2d Cir.10/31/01), 799 So.2d 671; Wilson v. Winn Parish Medical Center, 34,882 (La.App.2d Cir.6/20/01), 793 So.2d 268.

In a medical malpractice action, opinions of expert witnesses who are members of the medical profession are necessary to determine whether the defendant possessed the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence. Id. However, the necessity for expert evidence is abolished as to the standard of care required by the hospital or doctor where a reasonable juror can conclude that negligence has occurred. Estate of Wilburn v. Leggio, 36,534 (La.App.2d Cir.3/19/03), 842 So.2d 1175, writ denied, 03-1096 (La.6/6/03), 845 So.2d 1095, It is well-established that where medical disciplines overlap, a specialist in one field may give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines. Campbell I, supra; Corley v. State, Department of Health and Hospitals, 32,613 (La.App.2d Cir.12/30/99), 749 So.2d 926, 931.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Etcher v. Neumann, supra, citing Rosell v. ESCO, 549 So.2d 840 (La.1989); Satterwhite v. Reilly, 35,926 (La.App.2d Cir.5/8/02), 817 So.2d 407; writ denied, 02-1552 (La.9/30/02), 825 So.2d 1193, citing Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Etcher v. Neumann, supra. Therefore, the issue for the reviewing court is not whether the trier of fact was wrong, but whether the factfinder’s conclusions were reasonable under the evidence presented. Id. The appellate court should not substitute its opinion for the conclusions made by the trial court, which is in a unique position to see and hear the witnesses as they testify. Satterwhite v. Reilly, supra.

In support of their respective positions, the parties presented copious expert medical testimony from cardiologists, emergency room experts and ENT’s, as well as testimony from the nursing staff at Citizens. Additionally, Mr. Campbell’s medical records were introduced into evidence. Drs. Barrow and Shroff, Mr. Campbell’s treating cardiologist and primary care physician, also offered testimony.

Dr. Nguyen’s background and experience revealed two months of training in emergency room care during his internship at UCLA Medical Center. During his ENT residency at LSUMC in Shreveport, he underwent further emergency room training lasting from four to six months. He also began working in other emergency rooms for the Gould Group, which contracted his services to Citizens. The Gould Group required certification in advanced life cardiac support and the completion of one year of residency by its physicians. Dr. Nguyen was subject to Citizens’ policies and procedures, and could be dismissed by them as well. He worked for Citizens several times. Prior to May 21, 1995, he had evaluated patients experiencing chest pain in an emergency room setting and recognized chest pain as symptomatic of an emergency room treatment priority.

Dr. Nguyen testified that after reviewing Mr. Campbell’s medical history, his primary concern was the possibility of a heart attack. Therefore, |1fihe ordered cardiac enzymes, an EKG and blood tests. The EKG was performed at 8:32 p.m. and Dr. Nguyen noted “some ST segment elevation.” Dr. Nguyen explained that the segment elevation was not very impressive and non-specific. Prior to the EKG, Mr. Campbell was given nitroglycerin. Dr. Nguyen stated that although the non-specific EKG did not suggest a myocardial infarction, it did not rule out a heart attack either. He did not call a cardiologist because in his experience, the heart doctor would have been upset by such a call under the circumstances. Rather, he decided to continue to' observe Mr. Campbell. At 8:35 and 8:40 p.m., Mr. Campbell was again given nitroglycerin which relieved his chest pain but caused his blood pressure to drop. The patient was given fluids to alleviate this problem. Ultimately, Dr. Nguyen diagnosed Mr. Campbell with new onset unstable angina, and, because he had no history of coronary artery disease, ruled out myocardial infarction. Dr. Nguyen stated that, in his experience, it is very rare for a person who presents with unstable angina to go into a full-blown heart attack.

Dr. Nguyen explained that he did not order aspirin or heparin for Mr. Campbell because it was not uniformly given by emergency room physicians at that time. He stated that in neither his extensive training nor his experience in emergency room medicine was he ever taught that the administration of heparin or aspirin was within the standard of care. In fact, it was normally given by the admitting physician. He stated in his deposition that administering aspirin was controversial and that he did not give heparin because of the risk of bleeding.

In support of their position that Dr. Nguyen violated the standard of care in failing to administer aspirin and heparin, plaintiffs presented the testimony of their expert, Dr. David Tepper. Dr. Tepper testified that, in his opinion, Dr. Nguyen’s diagnosis of unstable angina was correct. However, he disagreed that the 8:32 p.m. EKG ruled out a heart attack because the “ST” wave elevation would not exist on a normal EKG. The elevated waves indicate a blood flow or blockage problem. From Dr. Tepper’s review of the EKG, Mr. Campbell was at high risk for a heart attack. Because of Mr. Campbell’s condition, Dr. Tepper felt that Dr. Nguyen should have administered aspirin and heparin to prevent the clot from permanently forming or getting bigger. Dr. Tepper characterized the anti-coagulant drugs as the “backbone” of unstable angina treatment. Dr. Tepper concluded that Dr. Nguyen’s failure to do so fell below the 1995 standard of care for any physician, thereby depriving Mr. Campbell of a significant chance of avoiding or reducing the magnitude of his heart attack.

Dr. Tepper was also questioned about a February, 1995 Emergency Medical Association’s Journal (“EMAJ”) article regarding the applicable standard of care for this case. The article described rules and guidelines for the diagnosis and treatment of unstable angina. In reviewing the article, Dr. Tepper concluded that Mr. Campbell fell within the “ongoing or recurrent ischemia” category of angina because his continued pain in the emergency room required the administration of morphine at 9:10 and again at 9:40 p.m. This qualified Mr. Campbell’s condition as recurrent. For that diagnosis, the EMAJ article set forth a “rule” that required the administration of heparin and aspirin. The “guidelines” provided by the article suggested that repetitive EKG’s be performed, as well as cardiac imaging and a chest x-ray. Dr. Tepper testified that the article described “rules” as those things which should be performed and that an explanation by the doctor was required for not doing so. “Guidelines,” on the other hand, were discretionary. The administration of heparin and aspirin for the “ongoing or recurrent ischemia” type of angina was a rule on the day of Mr. Campbell’s admission to the emergency room according to the EMAJ. Dr. Tepper testified that the medical records reflected no explanation for deviation from the rule. He also explained that because heparin was administered to Mr. Campbell after his heart attack, the administration of heparin before the heart attack was not contraindicated. Dr. Tepper admitted, however, that age can be a contraindication to heparin administration, albeit a controversial one.

On cross-examination, Dr. Tepper acknowledged that the “ST” wave elevation was subtle in this case and that the 8:30 p.m. EKG did not clearly indicate a heart attack. He was also aware of the fact that Mr. Campbell’s primary care physician prescribed daily aspirin for this patient. While Dr. Tepper did not know whether Mr. Campbell followed this aspirin regimen, he admitted that if he had done so, he could not say that taking one more aspirin in the emergency room would have made a difference.

Dr. David Elizardi, an expert in cardiology, testified on behalf of the defendants. Dr. Elizardi explained that unstable angina is a frequently occurring condition in which chest discomfort develops for the first time. Dr. Elizardi stated that treatment for unstable angina was not the same for different types of physicians, i.e., a cardiologist or emergency room physician, because of each physician’s unique role. The emergency room doctor’s job is to stabilize the patient and hand him off to the specialist who treats the condition. Neither would an emergency room doctor interpret an EKG in the same way that a cardiologist would- because of the difference in training. Dr. Elizardi characterized the EKG as “nonspecific,” meaning it did not meet the criteria for anticipating the heart attack process. When a person has a heart attack, the EKG is very specific in representing that condition. Dr. Elizardi explained that only 2-5% of unstable angina patients go on to have heart attacks.

Dr. Elizardi did not believe that the administration of an aspirin to Mr. Campbell would have prevented his heart attack assuming he was taking aspirin daily as prescribed. He admitted that now, aspirin is given promptly in the emergency room due to a greater understanding of the process, but that this was not the standard in 1995. Neither did Dr. Elizardi think that the administration of heparin would have changed the process due to the short interval between the chest pain and heart attack. He explained that, in the unstable angina and full blown heart attack patient, the clotting process has already formed and heparin would not act to dissolve that clot. He expressed his opinion that in Mr. Campbell’s case, the clotting process had already begun.

On cross-examination, Dr. Elizardi admitted that, as a cardiologist, he would have been thinking about the possibility of a heart attack and certain other diagnostic treatment, not including medication. An emergency room physician, however, would not have that avenue available to him. Dr. Elizardi opined that treatment of coronary syndromes such as this one should be done by a specialist. He did not think that the case of a patient with chest pains and a non-specific EKG required an immediate consultation by a cardiologist. He thought the admit to ICU was a good choice. Finally, Dr. Elizardi admitted that the standard of care for cardiologists in 1995 included the administration of heparin and aspirin for treating unstable angina. Nonetheless, he did not believe that even a cardiologist could have done anything to stop Mr. Campbell’s heart attack.

Dr. Todd Thoma, an expert in the field of emergency room medicine, testified for defendants. In addition to his past and current emergency room experience, Dr. Thoma had taught emergency room medicine at LSU Medical Center in Shreveport since 1994. Dr. Thoma testified that 30% of emergency room patients at LSUMC present with chest pain. Residents are taught how to differentiate the diagnoses of chest pain. Dr. Thoma believed that Dr. Nguyen “did a commendable job and met the standard of care in all facets.” He explained that the 8:32 p.m. EKG was nonspecific and suggested some early ischemia but not an acute heart attack. He felt that Dr. Nguyen made the correct diagnosis in this case and appropriately transferred the patient to ICU.

Regarding Dr. Nguyen’s failure to administer aspirin or heparin to Mr. Campbell in the emergency room, Dr. Thoma testified that he did not believe Dr. Nguyen violated the standard of care because, in 1995, studies indicated only 50% of people who presented with heart attacks were getting aspirin. This percentage included treatment by cardiologists, internists, family practitioners and emergency room doctors. Not only was it not the standard, it was not common practice. Moreover, because Mr. Campbell’s heart attack transpired over a very short period of time, within two hours, Dr. Thoma felt-that aspirin would have not have had time to take effect.

Dr. Thoma also did not believe that Dr. Nguyen violated the standard of care in failing to administer heparin, because heparin is a controversial drug that has many contraindications, including age. Dr. Tho-ma noted that in 1995 and today, the administration of heparin is not the standard of care for emergency room physicians. In fact, he felt that at the time of Mr. Campbell’s angina, the majority of doctors would have done nothing that would have affected Mr. Campbell’s clotting. Dr. Tho-ma described the standard of care for emergency room physicians as encompassing diagnoses and treatment. He felt that Dr. Nguyen acted within that standard of care.

When questioned regarding the EMAJ article, Dr. Thoma did not' agree that the February 1995 article would have established the standard of care for May of 1995. In his opinion, the article merely set forth guidelines that do not establish the standard of care. Dr. Thoma stated that a large number of medical journals publish these types of articles for doctors. He explained that the purpose of such articles is to eventually change behavior as clinical evidence on any given subject becomes stronger, but the articles do not dictate the standard of care. In 1995, the medical evidence did not indicate that the administration of these drugs was required to meet the standard of care.

The standard of care was, therefore, the critical dispute in this case which rested in large part on the competing opinions of the expert physicians and the authoritative medical journals. The jury’s choice in this case of the opinions of Dr. Nguyen’s expert witnesses was not clearly wrong | because we find those opinions reasonable under the evidence presented. Dr. Nguyen’s clinical judgment was formed by reading the EKG, his training as an emergency room physician, and his observations of the patient during that first critical hour. In just over an.hour, Mr. Campbell was in ICU. The only testimony from emergency room physicians was .presented by the defense, and they both testified that the administration of aspirin and heparin was not the standard of care for an emergency room physician in 1995. Dr. Thoma provided a reasonable explanation that one medical journal article, such as the February 1995 EMAJ article relied upon by plaintiffs, could not set the standard of care, but only formed a part of the body of medical evidence at that time. The administration of the two anti-coagulant drugs, which later became the standard, were only within the emerging trend of thought in 1995 and still awaiting further data from clinical trials by which they would be established as the standard. The reading of the EKG and the weighing of the propriety of the two drugs would no doubt have been seen differently by a cardiologist, but Dr. Nguyen was not held to that standard of care. Accordingly, we affirm the ruling by the jury that Dr. Nguyen’s actions in treating Mr. Campbell were within the standard of care for emergency room physicians.

III.

The final two assignments pertain to plaintiffs’ claim against Citizens. Plaintiffs contend that the trial court erred in giving or failing to give the jury certain requested instructions. One instruction concerned a hospital’s vicarious liability for the negligence of a physician. That assigned error is now moot because of our affirmation of the jury’s verdict in favor of Dr. Nguyen.

Plaintiffs next object to the failure of the trial court to instruct the jury as follows:

In addition, the absence of specific orders by the treating physician is not fatal to a plaintiffs personal injury claim alleging hospital negligence because the patient is entitled to rely upon the hospital’s expertise and independent professional judgment to supplement the treating physician’s direct orders when necessary to afford the patient the safe and reasonable healthcare the hospital is obligated to provide.

The above language is taken from this court’s ruling in Campbell I, supra.

On appeal, plaintiffs argue that the failure to include this instruction caused a lack of the full understanding by the jury of the duty of hospital personnel which exists independently of a physician’s orders or actions. Plaintiffs argue that this inquiry was important to whether or not the attending nurses should have sought to transfer Mr. Campbell to another hospital despite Dr. Nguyen’s orders or should have contacted Dr. Thompson or another physician regarding medication.

The trial court is not required to give the precise instruction submitted by a litigant, but need only give instructions which properly reflect the applicable law. Smart v. Kansas City Southern R. R., 36,404 (La.App.2d Cir.11/6/02), 830 So.2d 581; Hanley v. Doctors Hospital of Shreveport, 35,527 (La.App.2d Cir.6/6/02), 821 So.2d 508. To determine the sufficiency of a jury charge, all charges should be read together as a whole. Id.

Instead of the above instruction requested by the plaintiffs, the trial court charged the jury as follows:

With regard to the hospital, you are charged that a hospital has a direct obligation and duty of care to its patients, which is independent of any obligation or duty owed by the treating physician. A hospital must exercise the requisite amount of care toward a patient that his or her particular condition may require.
A determination of whether a hospital has breached the duty of care owed a patient depends upon the circumstances and facts of each case.
Strict adherence to the physician’s orders cannot excuse the failure to provide safe and reasonable care to the patient or preclude a finding of negligence on the part of the hospital.

We find the instruction given by the trial court to have adequately set forth the law of hospital liability without the necessity of including the language suggested by plaintiffs. The subject instruction was adequate to inform the jury that the duty of hospital employees to utilize their best independent professional judgment may, in certain circumstances, precipitate that employee to act outside of a physician’s orders or inaction.

Beyond plaintiffs’ critique of the jury instruction, they make no argument specifically pointing out to this court how the jury was manifestly erroneous in placing no liability on Citizens. Their meager assertions concerning the nurses’ actions or inactions were based on the premise that Dr. Nguyen’s care of Mr. Campbell was negligently administered. Our affirmance of the verdict that Dr. Nguyen was free from fault therefore also absolves the nurses who acted under his orders.

Conclusion

For the foregoing reasons, we reject plaintiffs’ claims of legal error and find no manifest error in the jury verdict. The judgment is affirmed at appellants’ costs.

AFFIRMED.

      . Dr. Thompson did not testify, and although she was referred to as Mr. Campbell’s treating physician, her medical specialty was not provided in the evidence.

      . In two earlier appeals to this court, we reversed partial and full summary judgments in favor of Citizens Medical Center and the plaintiffs. See, Campbell v. Hospital Service District No. 1, Caldwell Parish, 33,874 (La.App.2d Cir. 10/4/00), 768 So.2d 803, writ denied, 00-3153 (La.01/12/01), 781 So.2d 558 (hereinafter "Campbell I”) and Campbell v. Hospital Service District No. 1, Caldwell Parish, 35,015 (La.App.2d Cir.8/22/01), 793 So.2d 521 (hereinafter "Campbell II").


source: Caselaw Access Project

author: | WILLIAMS, J.

license: Public Domain

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION and Carol K. Ferguson, Plaintiff-Appellee, v. Cecil Raymond CRAFT, Legion Insurance Company, Bo Construction & Dirt Company, Inc. and Ellington Construction Company, Inc., Defendant-Appellant.
    No. 37,909-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Richard L. Fewell, Jr., West Monroe, for Appellant.
    F. Williams Sartor, Jr., Monroe, for Ap-pellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   | WILLIAMS, J.

In this automobile accident case, the defendants, Cecil Raymond Craft and Bo Construction & Dirt Company, Inc. (“Bo Construction”), appeal a judgment assessing them with 100% fault in causing the accident and dismissing their reconven-tional demand against Carol Ferguson and United Services Automobile Association (“USAA”). For the following reasons, we affirm.

FACTS

This motor vehicle accident involved a dump truck operated by Cecil Raymond Craft (“Craft”), owned by Bo Construction and insured by Legion Insurance Company, and a 1995 GMC Suburban operated by Carol K. Ferguson (“Ferguson”), owned by Drs. Ferguson and Lolley and insured by USAA.

On September 12, 1997, at approximately 11:30 a.m., the dump truck and the GMC Suburban collided at the intersection of La. Highway 616, also known as Arkansas Road, and Wallace Road. The intersection of La. Hwy. 616 and Wallace Road is a “T” intersection. La. Hwy. 616 runs east and west and Wallace Road runs north and south, terminating at the south side of La. Hwy. 616. Both roadways are two-lanes and northbound traffic entering La. Hwy. 616 from Wallace Road is controlled by a stop sign.

On the day of the accident, a utility maintenance project was underway at the intersection. Ellington Construction Company, Inc. (“Ellington”) employees were working in a manhole located directly in front of the intersection in the northbound lane of Wallace Road. The employees had parked their work vehicle in the northbound lane of Wallace Road to the south of the manhole and placed orange barrels to the south and west of the work site. The construction completely blocked the northbound lane of Wallace Road at the intersection, thereby forcing northbound traffic to enter La. Hwy. 616 from the southbound (westernmost) lane.

Ellington employed Isaac Ward (‘Ward”) as a flagman to control traffic at the intersection of La. Hwy. 616 and Wallace Road. At trial, a diagram of the accident scene was introduced into evidence. Ward testified that he was standing to the north of the manhole, but east of the southbound lane of Wallace Road and slightly in the eastbound lane of La. Hwy. 616. He testified that, in addition to using a flag, he controlled the traffic entering the intersection from Wallace Road by blocking the open lane of the roadway with an orange barrel when there was traffic on La. Hwy. 616. Ward also testified that when traffic traveling northbound on Wallace Road approached the intersection, he stopped the eastbound traffic traveling on La. Hwy. 616 to allow vehicles to safely enter the highway.

Ward testified that when he saw Craft’s dump truck approaching the intersection, he looked to the west, but did not see any vehicles approaching. He then waved Craft’s dump truck out onto La. Hwy. 616. As the dump truck entered onto the highway, Ward looked to the west again and saw the white Suburban driven by Ferguson traveling east on La. Hwy. 616. Ward testified that his efforts to signal Ferguson to stop, by jumping up and down and waving his flag, were unsuccessful. He testified that Ferguson attempted to avoid the collision by maneuvering across the center line and veering to her left, but she collided with the dump track. Ferguson’s vehicle went off of La. Hwy. 616, where it ran into a ditch, destroyed two DOTD signs and finally came to rest off of the road some distance to the east.

At trial, Ferguson testified that she regularly traveled La. Hwy. 616 and was aware that the Wallace Road utility maintenance project had been ongoing for several days prior to the accident. She testified there had been flagmen at the intersection, but that none had ever stopped traffic on La. Hwy. 616. She also testified that she did not see Ward at the intersection controlling traffic on La. Hwy. 616 and that as she approached the intersection, she looked to “be sure that I was clear.” Ferguson estimated that she was traveling below the speed limit of 45 miles per hour because her grandchild was in the car, she was aware that other children stood beside the road in that area waiting for buses and there were businesses along the highway. Ferguson testified that she did not see the dump truck before it entered La. Hwy. 616 and she did not know whether the dump truck stopped before attempting the left turn.

Craft did not testify at the trial. Two other witnesses, Louisiana State Police Trooper Christopher Towell and Mildred Burford, testified by deposition. According to Trooper Towell, Craft informed him at the scene that Ward had flagged him onto La. Hwy. 616. Craft also informed the trooper that he did not look to his left for traffic on La. Hwy. 616 because he assumed Ward had done so before directing him onto the highway. Trooper Towell testified that Craft related that Ferguson should not have been able to see Ward because he was standing to the east of Craft’s dump truck as it entered the intersection and turned left onto the highway. According to Trooper Towell, Ward stated that he was standing next to the manhole at the time of the accident.

According to Burford, she was driving westbound on La. Hwy. 616 and was approaching the intersection prior to the accident. In her deposition she testified:

I was coming up on where Wallace comes out, and I saw a dump truck, I guess. And it was coming out of Wallace onto Arkansas [La. Hwy 616]. And then I saw the other car coming toward me. We were kind of all going together right there, and the dump truck never slowed down. He never stopped. He come on — -just come on out in the road and hit her and pushed her off into the ditch.

Burford testified that when she first saw the Suburban, it was less than one-half of a block from the intersection. Burford also testified that because she was so close to Craft’s dump truck when it pulled out, she “would have hit him if he had not hit her [Ferguson].” Burford testified that she saw a flagman “off ... both roads completely” on the east side of the dump truck. She also testified that the flagman was not directing the traffic on either La. Hwy. 616 or Wallace Road.

The remaining witness, Alfred Craft, the owner of Bo Construction, did not see the accident, but arrived at the scene shortly after it occurred. He observed that the dump truck was positioned on La. Hwy. 616 and that Ferguson’s vehicle was off of the road to the north.

The court granted a directed verdict in favor of Ferguson and USAA with regard to Craft’s reconventional demand for personal injury damages because Craft did not appear for trial and his attorney did not assert any claims on his behalf. The court gave thorough reasons for judgment, finding that Ferguson was not at fault in causing the accident. The court found that Ferguson was a credible witness and that her testimony was consistent with Burford’s testimony. The court noted that both Ferguson and Burford testified they did not see the flagman attempting to stop traffic and that they were so close in proximity to the dump truck when it entered the intersection that they both were in danger of colliding with it. The court also found that Craft followed Ward’s direction and entered onto La. Hwy. 616 without determining it was safe to proceed. The court further concluded that Ferguson’s actions were reasonable under the “sudden emergency”-, doctrine. Craft and Bo Construction appeal the judgment.

STANDARD OF REVIEW

It is well settled that a court of appeal 'may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

DISCUSSION

Although this appeal was taken by both Cecil Raymond Craft and Bo Construction, the parties’ appellate brief does not argue that the court erred in dismissing Cecil Raymond Craft’s reconventional demand for personal injury damages due to his failure to appear. In the absence of briefing or argument on this point, we hereby consider the issue abandoned. U.R.C.A. Rule 2-12.4.

The allocation of comparative fault is a factual matter within the discretion of the trial court. The trial court’s determination must not be disturbed on appeal in the absence of manifest error. Rosell, supra; O’Riley v. City of Shreveport, 30,107 (La.App.2d Cir.1/23/98), 706 So.2d 213, writ denied, 98-0752 (La.5/1/98), 718 So.2d 418.

Ferguson’s conduct is subject to the duty-risk analysis. Boykin v. Louisi ana Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225. A motorist’s duty of care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards. Williams v. City of Monroe, 27,065 (La.App.2d Cir.7/3/95), 658 So.2d 820, writ denied, 95-1998 (La.12/15/95), 664 So.2d 451, and 95-2017 (La.12/15/95), 664 So.2d 452. A driver has a duty to drive defensively from the time the driver witnesses the negligent operation of another vehicle or notices other hazards posing the potential for resulting damage. That duty may include the duty to slow down or otherwise avoid risks posed by a vehicle ahead. Edwards v. Horstman, 96-1403 (La.2/28/97), 687 So.2d 1007.

Under our sudden emergency doctrine, one who finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to adopt to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence. Clark v. Natt, 32,548 (La.App.2d Cir.12/8/99), 748 So.2d 584, writ denied, 2000-0084 (La.3/17/00), 756 So.2d 1142.

A vehicle driver intending to turn left within an intersection shall yield to oncoming traffic that is “within the intersection or so close thereto as to constitute an immediate hazard.” LSA-R.S. 32:122. See also LSA-R.S. 32:101 and 104. Further, the left turn has been held to be the most dangerous maneuver a motorist may execute, and great caution should always be taken. Harper v. State Farm Mutual Auto. Ins. Co., 511 So.2d 1283 (La.App. 2d Cir.1987); Ebey v. Coggins, 474 So.2d 1352 (La.App. 2d Cir.1985). Obviously, such a turn should be attempted only when it is ascertained that it can be safely completed. Strickland v. Pitts, 506 So.2d 1360 (La. App. 2d Cir.1987); Hawkins v. Gilfoil, 483 So.2d 1082 (La.App. 2d Cir.1986). Left turning motorists are held to a high standard of care and are burdened with a presumption of liability when involved in an accident. Lennard v. State Farm Mutual Auto. Insurance Company, 26,396 (La.App.2d Cir.1/25/95), 649 So.2d 1114.

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, although the presumption is rebuttable and is tempered by the fact that a party need only put on enough evidence to prove the case. Safety Ass’n of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App.2d Cir.6/20/01), 793 So.2d 218, writ denied, 2001-2557 (La.12/07/01), 803 So.2d 973.

After a thorough review of this record, we find no manifest error in the trial court’s conclusion that Ferguson was not at fault in causing the accident. The flagman admitted that he was unaware of Ferguson’s presence until he had already waved the dump truck onto the highway, and an independent witness, Burford, testified that both she and Ferguson were very close to the intersection when the accident occurred. There was no direct observation of Ferguson’s speed apart from her own testimony that she was going slower than the speed limit because of the construction site and the generally congested nature of the area around the intersection. As previously noted, Craft did not testify and thus did not rebut Ferguson’s assertion that she was traveling below the speed limit.

Neither of the drivers who testified saw the flagman working to control the traffic. Even accepting arguendo that the flagman was trying to signal to Ferguson to stop, because he was positioned to the east of the turning dump truck and out of her view, it would have been difficult or impossible for her to see him in time to prevent the collision.

The record amply supports the trial court’s conclusion that a combination of the dump truck driver’s inattentiveness and the flagman’s conduct caused this accident.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellants, Cecil Raymond Craft and Bo Construction & Dirt Company, Inc.

AFFIRMED.

      . Although the plaintiff's petition correctly refers to the defendant/insurer as the United Services Automobile Association, the district court's record incorrectly refers to this defendant as United States Automobile Association. In this opinion, we will refer to this defendant by its correct name or its acronym.


author: 11 MOORE, J.

text:
    WILLIS-KNIGHTON MEDICAL CENTER, Plaintiff-Appellee, v. CADDO-SHREVEPORT SALES and Use Tax Commission, Defendants-Appellant.
    No. 37,914-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Applications for Rehearing Denied Jan. 22, 2004.

      Barham & Warner, L.L.C. by Richard G. Barham, Shreveport, for Appellant.
    Oreck, Bradley, Crighton, Adams & Chase, by Jesse R. Adams, III, Andre B. Burvant, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   11 MOORE, J.

The Caddo-Shreveport Sales and Use Tax Commission (“the Commission”) appeals a judgment awarding a substantial refund to the plaintiff, Willis-Knighton Medical Center (“Willis-Knighton”), of sales and use taxes it paid on certain transactions. Willis-Knighton answers the appeal, contesting the denial of other refunds. Finding merit in both parties’ positions, we reverse and render.

Procedural Background

Willis-Knighton operates a not-for-profit medical center with three hospitals in Shreveport. In December 1996, Willis-Knighton wrote the Commission to claim a credit for sales and use taxes it overpaid from December 1992 through September 1994; later, it also claimed a credit for overpayments from October 1994 through December 1996. Willis-Knighton claimed, in essence, that its purchases of food for resale to patients, medical devices, blood and blood products, and contract maintenance on immovable equipment, were either excluded or exempt from local sales and use taxes. In early January 1998, the Commission denied both requests for credits.

In mid-January 1998, when Willis-Knighton filed its monthly tax return, it advised the Commission that $47,221 was being paid under protest. Willis-Knighton filed the instant suit in late January 1998, demanding a refund- of the sum paid under protest, pursuant to Combined Ordinance (“C.O.”) § 11.01, providing for the refund of taxes paid under protest. It also demanded $568,984 for the alleged overpay-ments- between December 1992 and December 1996, pursuant to C.O. §§ 11.02 and 11.04, providing for the full adjudication of any finding of the Commission. Willis-Knighton claimed that it owed no local sales and use taxes for the following.

(1) Albumin and other blood products, allegedly exempt under statutes that define “human tissue transplant” to include “blood and blood products” that are placed in a recipient individual. La. R.S. 47:301(10)(d), 33:2717.
(2) Medical devices used by patients to treat diseases under the supervision of and prescribed by their treating physicians, allegedly exempt under R.S. 47:305 D(l)(s).
(3) Repairs and maintenance on Willis-Knighton’s MRI, Starcam, X-rays and large sterilizers, on grounds that sales and use tax applies only to repairs of tangible personal property, R.S. 47:301(14)(g), while these items were permanently attached to the hospital building and thus immovable under La. C.C. arts. 465, 466.

The Commission conceded that Willis-Knighton had been cooperative with its auditors, but vigorously denied every other aspect of the claims. The parties filed several motions for summary judgment, all of which were denied. The matter was finally set for trial in September 2002.

On the morning of trial, the Commission filed an exception of no right of action, urging that the only way a taxpayer can obtain a refund is by paying under protest, pursuant to C.O. § 11.01. The court took this under advisement. The parties announced that they had reached agreements with respect to all issues except the exempt status of the medical devices, blood and blood products; whether the nuclear cameras were immobilized; and whether Willis-Knighton waived its claim to any overpayments not made under protest. Three witnesses testified, and the Commission filed a post-trial brief regarding the nuclear cameras.

In December 2002, the district court rendered a written ruling. It first overruled the Commission’s exception of no right of action: “Section 10 of the Combined Ordinances provides a procedure for the refund of taxes, paid without protest and in error when the claim is made within three years.” On the merits, the court found that the nuclear cameras were permanently attached to the hospital, were “other installations” as contemplated by C.C. art. 466, and thus Willis-Knighton was entitled to a refund of local sales and use taxes on contract maintenance for them. Next it found that medical devices were specifically exempt from local sales and use tax under R.S. 47:305 D(l)(s), as enacted in 1985; the court rejected the Commission’s argument that a 1991 amendment to subsection D(6), which generally lifted medical exemptions from local taxes, also removed the exemption for medical devices. Thus it found that Willis-Knighton was entitled to a refund of these taxes. Finally, the court found that tissue transplants are exempt from local sales and use tax only if they are “blood or blood products transplanted from one individual into another recipient individual.” R.S. 33:2717. The court accepted testimony that currently most transfusions consist of blood products taken from multiple donors. The court therefore rejected this claim for refund.

The judgment ordered the Commission to refund overpayments of $6,724.93 for taxes on service to the nuclear cameras and $356,551.03 for taxes on medical devices for the period December 1992-De-cember 1996, not paid under protest. The judgment also ordered a refund of $21,877.80 for taxes on service to the nuclear cameras and $6,850,617.23 for taxes on medical devices, all paid under protest since January 1998, together with any such taxes paid under protest since trial. All awards were subject to judicial interest. The judgment denied Willis-Knigh-ton’s claims totaling $135,590.11 for local taxes paid on blood and blood products.

The Commission appealed suspensively, urging the court erred in overruling the exception of no right of action, exempting the sales of medical devices, and finding that the nuclear cameras were component parts of the building. Willis-Knighton answered the appeal, urging the court should have found that blood products were excluded from local sales and use taxes.

Discussion: Exception of No Right of Action

By its first assignment the Commission urges the court should have sustained its exception of no right of action. It contends that as a general rule, if there is a question of fact or law, a taxpayer must pay the taxes under protest as a predicate to filing suit. Kean’s Partnership v. Parish of East Baton Rouge, 96-0751 (La.11/25/96), 685 So.2d 1043; Ingram Oil Co. v. St. John the Baptist Parish School Bd., 406 So.2d 784 (La.App. 4 Cir.1981), writ denied, 412 So.2d 87 (La.1982). Payment under protest is a specific requirement of C.O. § 11.01, and refund without payment under protest is available only when there is “no question of fact or law,” C.O. § 10.04, a situation not present in this case.

Willis-Knighton concedes that § 11.01 establishes the procedure of paying under protest, but argues it is not the sole procedure to obtain relief from the Commission. It contends that §§ 10.02, 10.03 and 10.04 allow taxpayers to file claims for refund of taxes any time within three years of payment, without protest. It concedes that § 10.04 appears to limit this procedure to cases of “no question of fact or law,” but urges this would lead to the “audacious position” that once the Commission decides to deny a refund request, the taxpayer is without remedy.

The taxpayer’s remedy for grievances arising out of the tax ordinance is defined by C.O. § 11.01:

A right of action is hereby created to afford a remedy at law for any dealer aggrieved by the provisions of this ordinance; and in case of any such dealer resisting the payment of any amount found due, or the enforcement of any provisions of such laws in relation thereto, such dealer shall pay the amount found due by the Administrator and shall give the Administrator notice, at the time, of his intention to file suit for the recovery of the same; and upon receipt of such notice the amount so paid shall be segregated and held by the Administrator for a period of thirty (30) days; and if suit be filed within such time for recovery of such amount, such funds so segregated shall be further held, pending the outcome of such suit. If the dealer prevails, the Administrator shall refund the amount to the claimant, with interest at the rate of two percent (2%) per annum covering the period from the date the said funds were received by the Caddo-Shreveport Sales and Use Tax Commission to the date of refund.

This procedure, called “payment under protest,” complies with due process requirements. Cat’s Meow Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186; McKesson Corp. v. Division of Alcoholic Bev. & Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). Willis-Knighton plainly did not pay under protest from December 1992 through December 1996. Instead, it demanded a refund without protest. That procedure is defined by § 10.04:

Where no question of fact or law is involved, and it appears from the records of the Caddo-Shreveport Sales and Use Tax Commission that any monies have been erroneously -or illegally collected from any dealer, or have been paid by any dealer under a mistake of fact or law, the Administrator may, at any time within three (3) years of payment, upon making a record in writing of his reasons therefor, certify that any dealer is entitled to such refund and thereupon the Administrator shall authorize the payment thereof from any appropriation available for such purposes.

In Kean’s Partnership v. Parish of East Baton Rouge, supra, the taxpayer advanced exactly the same argument as that now raised by Willis-Knighton, based on East Baton Rouge city-parish ordinances that are the equivalent of C.O. §§ 10.04 and 11.01. By a plain reading of § 10.04’s analog, the supreme court found that “when no question of fact or law exists and the taxes have been paid under a mistake of fact or law,” then the director shall authorize a refund. However, if questions of fact or law exist, then the director has the discretion to grant or deny a refund. Unlike the remedy for payment under protest, there is no judicial recourse for review of the Administrator’s decision when payment is made without protest. The court elaborated:

[W]hen a taxpayer voluntarily pays the sales tax (not under protest) and then files a claim for a refund with the Director, and if the Director determines that no refund was owed because there was a genuine issue of fact or law, then the only relief the taxpayer is afforded is judicial review of the Director’s determination that there existed a genuine legal or factual controversy over whether the taxes were owed. If we were to decide that judicial review is available to the taxpayer regardless of the existence of a question of fact or law, the payment under protest requirements in local ordinances would be rendered meaningless and the local governing authorities would be subject to claims for refunds without having segregated the funds therefor. Reading Section 14(a) [cf. C.O. § 11.01] and Section 26 [cf. C.O. § 10.04] in pari materia, we conclude that judicial review of a tax issue is guaranteed only when the taxpayer avails himself of the payment under protest procedure or where “no question of fact or law is involved.”

685 So.2d at 1046 (emphasis added).

This analysis completely answers Willis-Rnighton’s contentions. While § 10.04 does establish a procedure for refund without protest, that procedure is available only in the absence of questions of fact or law, and when the payments have been erroneous. The Commissioner found valid issues of fact and law regarding the medical devices, the nuclear cameras and blood products. This finding is not plainly wrong, so Willis-Knighton has no further judicial review of the decision not to refund taxes paid without protest. The district court committed legal error in finding otherwise.

The full legal remedy under § 11.01 hinges upon giving notice at the time of payment, something Willis-Knighton did not do until January 1998. Ingram Oil Co. v. St. John the Baptist Parish School Bd., supra. This foreclosed its right to assert legal and factual issues with respect to taxes paid without protest. The district court erred in overruling the exception of no right of action. The judgment is reversed insofar as it ordered the refund of any taxes paid without protest.

Nuclear Cameras as Component Parts

By its third assignment the Commission urges the district court erred in finding that the GE Medical and AD AC Laboratories nuclear cameras were “other installations” as defined by La. C.C. art. 466, and thus as a matter of law component parts of the hospital building. Citing the first and second paragraphs of art. 466, the Commission urges that a nuclear camera is neither the type of accessory that is legally presumed to be a component part, nor factually a component part because it is not permanently attached to the hospital. Showboat Star Partnership v. Slaughter, 2000-1227 (La.4/3/01), 789 So.2d 554; Hyman v. Ross, 26,096 (La.App. 2 Cir. 9/21/94), 643 So.2d 256. The Commission specifically argues that removing the camera would cause no substantial damage either to the camera or to-the building. It also contends the camera fails to satisfy the second paragraph of art. 466 because there is no societal expectation of finding a nuclear camera in a large commercial building. Showboat Star, supra; Coulter v. Texaco Inc., 117 F.3d 909 (5 Cir.1997).

Willis-Knighton contends that the nuclear cameras are both “other installations” and permanently attached to the hospital building, thus meeting either test of art. 466. Equibank v. United States, 749 F.2d 1176 (5 Cir.1985); American Bank & Tr. Co. v. Shel-Boze Inc., 527 So.2d 1052 (La. App. 1 Cir.), writ denied, 532 So.2d 155 (La.1988). Willis-Knighton also cites .a Louisiana Department of Revenue ruling, that nuclear cameras, like MRI scanners, meet the “other installations” test. Revenue Ruling 02-003 (3/11/02). It also cites a 1999 Board of Tax Appeals judgment finding that its nuclear cameras are “other installations” and reversing an assessment of state sales and use tax for maintenance contracts. Willis-Knighton concludes that the district court’s findings were not plainly wrong.

Sales of services include the furnishing of repairs to tangible personal property. La. R.S. 47:301(14)(g)(i). .To determine whether a thing is a component part of an immovable and thus not subject to sales and use tax courts look to C.C. art. 466:

Art. 466. Component parts of building or other structures

Things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations, are its component parts.
Things are considered permanently attached if they cannot be removed without substantial damage to themselves or to the immovable to which they are attached.

This court has held that the two paragraphs of art. 466 are separate and distinct and should be applied independently to determine whether a particular object is a component part. Hyman v. Ross, supra. The first paragraph declares that the enumerated installations are deemed to be permanently attached as a matter of law, without regard to the test of the second paragraph. The enumeration is merely illustrative; one commentator has noted, “a steam heating system, a hot water heater, a safe, doors, and a butane gas system may be -component parts of a building under the first paragraph of art. 466.” 2 A.N. Yiannopoulos, Property, § 142 (4th ed.2001). The second paragraph of art. 466 determines what constitutes permanent attachment with respect to things not covered by the first paragraph. It declares that things are considered permanently attached if they cannot be removed without substantial damage to themselves or to the immovable. Id.

In addition to the two-step analysis of art. 466, the jurisprudence has applied a “societal expectations” test to determine whether various items not enumerated in the first paragraph should nevertheless be deemed permanently attached as though they were specifically enumerated. In Equibank v. United States, supra, the issue was whether antique chandeliers were component parts of a house. The court of appeals stated:

The ordinary view of society being a relevant consideration, we conclude our consideration by asking the near-rhetorical question: Does the average, ordinary, prudent person buying a home expect the light fixtures to be there when he or she arrives to take possession? Does that person expect the room to become illuminated when the light switch is thrown or should that person reasonably expect no response to the switch and, upon looking up, reasonably expect to see only a hole in the ceiling with the interior house wiring sticking out of the electrical workbox? In our view, the societal expectation is to have the lights go on.

Equibank, 749 F.2d at 1180. Notably, chandeliers and other light fixtures may be easily understood as electrical installations which satisfy the first paragraph of art. 466.

In the instant case, nuclear cameras are neither enumerated in the first paragraph of art. 466 nor deemed to be permanently attached under the second paragraph; thus the court must apply the societal expectations test. The supreme court recently demonstrated this test’s proper application in Showboat Star Partnership v. Slaughter, supra. In that case the operators of a gaming vessel filed suit for a refund of sales and use taxes paid under protest for purchases of gaming equipment (slot machines, roulette tables, cabinets, currency conveyor systems, surveillance systems and illuminated |1, signs). All these items were installed on the vessel during its construction. The gaming vessel operators contended that gaming equipment, like the antique chandeliers in Equibank, “is something one would reasonably expect to see when they enter a gaming riverboat.”

The supreme court disagreed, noting that the “relevant inquiry is not whether society expects to see gaming equipment when it enters a riverboat operated for gaming purposes, but whether society expects to see such equipment when it enters a vessel.” Id., at 559 (emphasis in original). The court concluded that society holds no such an expectation. The court also cited the analogous field of offshore oil exploration, in which a reasonable business entity buying an offshore drilling platform would not expect, in the absence of specific contractual provisions, a heavy and extremely expensive drilling rig to be a component part thereof. Coulter v. Texaco, supra.

Synthesizing the supreme court’s approach in Showboat Star and the Fifth Circuit’s approach in Coulter, supra, we conclude the district court erred in finding that society expects a hospital to contain nuclear cameras. The proper analysis under Showboat Star and Coulter is whether a commercial building must contain a nuclear camera to meet societal expectations. This obviously is not the case. The district court committed legal error in finding that the nuclear cameras were component parts of the hospital buildings under the first paragraph of art. 466.

The district court further observed that it “may be unnecessary to apply the second paragraph of art. 466,” but found that the nuclear cameras are “mounted and anchored in concrete and hardwired into the hospital’s electrical supply,” cannot move around, require a special foundation, and cannot be removed without exposing the concrete foundation. We have closely reviewed the testimony of Willis-Knigh-ton’s director of clinical engineering, Mr. Wesley Smith. He testified that the cameras require a special foundation to assure they are level, and that because of their sensitivity they should not be moved. However, he also testified that the cameras are not intended to be permanent fixtures: they will be removed when they become obsolete and replaced with more modern equipment. He explained that when one is removed, the process damages neither the camera nor the building. This negates any showing, under the second paragraph of art. 466, that removing the camera would substantially damage both the camera and the building.

On this evidence, the district court was plainly wrong to find the nuclear cameras were permanently attached to the building. We therefore attach no weight to the administrative construction of art. 466 in Revenue Ruling 02-003. Contemporaneous construction of a statute cannot have weight when it is contrary to or inconsistent with the statute. Sales Tax Dist. No. 1 v. Express Boat Co., 500 So.2d 364 (La.1987); Board of Trustees v. St. Landry Parish Bd., 2002-0393 (La.App. 1 Cir. 2/14/03), 844 So.2d 90, writ denied, 2003-0770 (La.5/9/03), 843 So.2d 404. For the same reason, the ruling of the Board of Tax Appeals, another executive agency, La. R.S. 36:4 B(l)(p), with regard to state sales and use tax, is not persuasive.

The portion of the judgment ordering a refund of local sales and use taxes for the maintenance contracts covering the nuclear cameras will be reversed.

Exemption of Medical Devices from Local Taxation

By its second assignment the Commission urges the district court erred in granting Willis-Knighton an exemption to local sales and use taxes on medical devices. The Commission contends that the applicable statute, R.S. 47:305 D(l)(s), creates an exemption only from the sales and use tax levied by the state. A tax exemption (as distinguished from an exclusion) is strictly construed against the taxpayer. McNamara v. Central Marine Serv., 507 So.2d 207 (La.1987). The medical device exemption was created in 1985, at which time state-tax exemptions applied to local taxes unless “otherwise specifically provided.” R.S. 47:305 D(6). However, in 1991 the presumption was reversed; now, any exemption must “specifically provide in the title and body of the bill that it is applicable to a political subdivision.” The Commission urges that the 1985 act creating the medical device exemption failed to do this, and that the 1991 amendment “threw into doubt” all exemptions passed between 1978 and 1991. The Commission refers to similar statutes, R.S. 33:2716.1 and 47:302 E, which clearly show a legislative intent to deny the exemption for local taxes unless the enabling act clearly so provides. The Commission relies on Tenet Healthsystems Hosp. v. Parish of St. Tammany, 1999-0924 (La.App. 1 Cir. 6/23/00), 762 So.2d 1144, writ denied, 2000-2518 (La.11/27/00), 775 So.2d 448, as following this line of reasoning and disallowing a local tax exemption for medical devices.

Willis-Knighton contends that Winn Parish School Bd. v. PO2 Inc., 29,089 (La.App. 2 Cir. 2/26/97), 690 So.2d 911, holds that the medical device exemption applies to local taxes, as does a plain reading of R.S. 47:305 D. It asserts that the 1991 amendment to D(6), while reversing the presumption prospectively, left open the validity of prior exemptions (it begins, “Without determining the validity of any exemptions placed in this subsection subsequent to the effective date of Act 205 of 1978”). Willis-Knighton traces the history of R.S. 47:305 to show that the legislature has not limited the application of the medical devices exemption, as it has with several other exemptions. Finally, Willis-Knighton argues that exemptions must be uniform between the state and local authorities, La. Const, art. 6 § 29(D); the legislature lacked authority to exempt medical devices from state sales and use tax but not from local tax. In support it cites BP Oil Co. v. Plaquemines Parish Gov’t, 93-1109 (La.9/6/94), 651 So.2d 1322.

A tax exemption is an exceptional privilege which must be expressly and clearly conveyed in plain terms. Showboat Star Partnership v. Slaughter, supra; Bill Roberts Inc. v. McNamara, 539 So.2d 1226 (La.1989). Tax exemptions are strictly construed against the taxpayer claiming the benefit thereof and must be clearly, unequivocally and affirmatively established by the taxpayer. Archer Daniels Midland Co. v. Parish School Bd. of St. Charles, 2001-0511 (La.11/28/01), 802 So.2d 1270; McNamara v. Central Marine Serv., supra.

The medical device exemption is as follows:

§ 305. Exclusions and exemption from the tax
D. (1) The sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this Chapter [sales tax collected and. administered by the state collector of revenue]:
(s) Any and all medical devices used exclusively by the patient in the medical treatment of various diseases or administered exclusively to the patient by a physician, nurse, or other health care professional or health care facility in the medical treatment of various diseases under the supervision of and prescribed by a licensed physician.

When the legislature added this exemption by La. Acts 1985, No. 901, the statute further provided:

(6) The exemptions from the State sales and use tax provided in this subsection shall be applicable to any sales and use tax levied by any local governmental subdivision or school board except as otherwise provided in this subsection.

In 1991, however, the legislature amended Subsection D(6) to provide as follows:

(6) The exemptions from the state sales and use tax provided in this Subsection in existence as of the effective date of Act 205 of 1978 shall be applicable to any sales and use tax levied by any local governmental subdivision or school board except as otherwise specifically provided in this subsection. Without determining the validity of any exemptions placed in this Subsection subsequent to the effective date of Act 205 of 1978, all Acts after the 1991 Regular Session placing an exemption in this Subsection which is applicable to a political subdivision must, to be effective, specifically provide in the title and body of the bill that it is applicable to a political subdivision. * * *

The medical device exemption was not in existence as of the effective date of Act 205 of 1978, and it was not placed in the Subsection after the 1991 regular session. The issue is whether it applies to local sales and use taxes paid under protest beginning in January 1998.

In Tenet Healthsystems Hosp. v. Parish of St. Tammany, supra, the court addressed precisely this issue. After laying out the statutory background, the court reasoned:

Under La. R.S. 47:305 D(6) after its amendment by Act 1065, the exemptions set forth in Section 305 D in existence as of June 29, 1978,-the effective-date of Act 205 of 1978, -applied to any sales and use tax levied by any local taxing authority unless otherwise specifically provided therein. The medical device exemption created by Act 901 of 1985 was not one of those in existence as of June 29, 1978. Therefore, by virtue of La. R.S. 47:305 D(6), the medical device exemption does not apply to any sales and use tax levied by any local taxing authority.

This conclusion, in our view, is supported by a plain reading of R.S. 47:305 D(l)(s) and D(6). Although the 1991 amendment officially skirted the validity of exemptions placed in the statute between 1978 and 1991, the plain effect was to remove any exemption from local sales and use tax unless it clearly applied to local tax. Subsection D(l)(s) clearly, does not.

The Tenet court also noted that when the legislature created the medical device exemption in 1985, other statutes clearly indicated that it would not apply to local sales and use tax. A section of- Title 33, affecting the taxation and fiscal affairs of municipalities and parishes,” was amended in 1978 to provide:

§ 2716.1. Prohibited exemptions; specific application required
* * *
(B) No exemption from the state sales and use tax granted subsequent to the effective date of this Act and granted pursuant to the provisions of Chapters 2 or 2-A of Title 47 of the Louisiana Revised Statutes of 1950 [including R.S. 47:305] shall be applicable to any sales and use tax levied by any local governmental subdivision or school board unless the state exemption specifically provides that it applies to such sales and use tax levies. In the absence of any such specific application of the state exemption to sales and use tax levies of any local governmental subdivision or school board, any state exemption granted after the effective date of this Act and granted pursuant to the provisions of Chapters 2 or 2-A of Title 47 of the Louisiana Revised Statutes of 1950 shall be.applicable only to the levy and collection of the state sales and use tax.

R.S. 47:302 E, amended by the same 1978 act as the preceding statute, similarly made exemptions to state sales and use tax inapplicable to local sales and use tax unless the opposite is clearly expressed:

E. No exemption from the state sales and use tax granted after the effective date of this Act and granted pursuant to the provisions of this Chapter or Chapter 2-A of Title 47 of the Louisiana Revised Statutes of 1950 [including R.S. 47:305] shall be applicable to any sales and use tax levied by any local governmental subdivision or school board unless the state exemption specifically provides that it applies to such sales and use tax levies. In the absence of any such specific application of the state exemption to sales and use tax levies of any local governmental subdivision or school board, any state exemption granted pursuant to the provisions of this Chapter or Chapter 2-A of Title 47 of the Louisiana Revised Statutes of 1950 shall be applicable only to the levy and collection of the state sales and use tax.

These two statutes were both in effect when the legislature added the medical device exemption from state sales and use tax in 1985. From that time until Willis-Knighton lodged the instant protest, no legislation has provided that the exemption set forth in 47:305 D(l)(s) applied to local sales and use tax.

Willis-Knighton vigorously urges that BP Oil Co. v. Plaquemines Parish Gov’t, supra, mandates a finding that the medical device exemption must apply to local sales and use taxes. The court in Tenet, however, noted that the dispute in BP Oil involved local sales and use tax payments made between January 1985 and October 1990 — i.e., prior to the 1991 amendment of 47:305 D(6), which reversed the presumption. For this reason, the precise holding of BP Oil is distinguished.

Willis-Knighton further argues that between 1973 and 1978, the legislature enacted a series of health care exemptions, each time specifically designating that it would not apply to local sales and use taxes. With the enactment of the medical device exemption in 1985, however, there was no statement limiting, the exemption to state tax. Willis-Knighton contends that this sequence of events proves a legislative intent to make Subsection D(l)(s) apply both to state and local taxes. For the reasons expressed, however, we find that a plain reading of 47:305 mandates the opposite conclusion; we therefore will not resort to the inferences provided by legislative history. La. C.C. art. 9; Cacamo v. Liberty Mutual Fire Ins. Co., 99-3479 (La.6/30/00), 764 So.2d 41; Southwest Gaming Servs. of La. v. Caddo-Shreveport Sales & Use Tax Comm’n, 27,335 (La.App. 2 Cir. 9/27/95), 661 So.2d 662, writs denied, 95-2546, 95-2578 (La.1/5/96), 666 So.2d 294 (concurring opinion).

Finally, Willis-Knighton urges that this court’s opinion in Winn Parish School Bd. v. PO2 Inc., supra, declares medical devices exempt from local taxation. In that case, P02 had sold “numerous medical items” in Winn Parish; it claimed exemptions from local sales and use tax under 47:305 D(1)(s). The school board filed suit to recover those taxes. P02 obtained a partial summary judgment which held, in effect, that most of the items were medical devices rather than patient aids, and that the medical device exemption applied to local sales and use tax. By contrast, sales of “patient aids” are plainly not exempt from local tax. R.S. 47:305 D(4). The school board appealed, and this court found genuine issues of material fact as to whether most of the items were patient aids, not medical devices. We therefore remanded the case for further proceedings.

The only issue raised in PO2 was whether certain medical items — portable oxygen bottles, patient lifts, trapeze bars, wheelchairs, bedside commodes, and others— were more nearly “patient aids” than “medical devices.” Because of the genuine issues of material fact, we did not address whether the medical device exemption of R.S. 47:305 D(l)(s) applied, as a matter of law, to local sales and use tax. We therefore reject Willis-Knighton’s contention that PO2 mandates such a holding. For the reasons expressed herein, we subscribe to the rationale of Tenet Healthsystems Hosp. v. Parish of St. Tammany, supra.

The portion of the judgment ordering a refund of local sales and use taxes for the sale of medical devices will be reversed.

Exemption of Blood Products

By answer to appeal, Willis-Knighton urges that the blood products at issue are excluded from local sales and use taxes. It concedes that La. R.S. 33:2717 and 47:301(10)(d), governing local and state taxation respectively, require transplantation “from one individual into another recipient individual,” but argues they do not require direct transplantation. Willis-Knighton contends that the district court’s interpretation would virtually nullify the blood products exemption because most blood centers blend the components of many donors to yield enough product for one recipient.

The Commission urges that the local tax statute, R.S. 33:2717, creates only an exemption, not an exclusion, and that a plain reading cannot negate its requirement of “from one individual.” The Commission also suggests that by collecting blood components from a pool of people, blood centers create a “more useful product,” and a rational basis exists for treating sales of concentrated blood components differently from whole-organ transplants.

For the time frame involved in this case, human tissue transplants were exempt from local sales and use tax:

§ 2717. Exemptions; human tissue transplants
The sale of any human tissue transplant shall be exempt from the sales and use tax levied by any political subdivision of the state. For purposes of this exemption, human tissue transplants shall include all human organs, bone, skin, cornea, or blood or blood products transplanted from one individual into another recipient individual.

Similarly, for purpose of state sales and use tax, “sale at retail” excludes “blood, or blood products transplanted from one individual into another recipient individual.” R.S. 47:301(10)(d).

The parties have not cited, and we are unaware of, any jurisprudence addressing the sales of blood products such as those at issue here. We recognize the principle of strict construction of tax exemptions. Archer Daniels Midland Co. v. Parish School Bd. of St. Charles, supra; McNamara v. Central Marine Serv., supra. We are also guided by the rule that when the words of a law are ambiguous, “their meaning must be sought by examining the context in which they occur and the text of the law as a whole.” La. C.C. art. 12. In the analogous context of interpreting a contract, a provision susceptible of different meanings “must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.” La. C.C. art. 2049.

Dr. Kenneth Harrison, an anatomical and clinical pathologist, testified hospitals rarely transfuse whole blood from one donor into one recipient. He referred to 17 components extracted from whole blood and pooled for transfusion. He explained that only red cells and plasma are plentiful enough in any one donor to benefit a recipient by direct transfusion; it would be wasteful to transfuse whole blood to a patient who needed only albumin, a protein component. He added that 50 to 100 donors are often needed to contribute enough of whole blood to make one usable unit of albumin. The Commission offered no evidence to contradict Dr. Harrison’s assessment of blood industry practices.

This evidence convinces us that as a matter of general understanding, “blood products” encompass blood components extracted from multiple donors and combined to make a usable dosage of the given product. This definition, however, is inconsistent with R.S. 33:2717’s limitation, “from one individual.” Because of this ambiguity, we must look to the law as a whole. The purpose of R.S. 33:2717 was to exempt from local sales and use taxes certain transplants, including blood and blood products. To apply the exemption solely to one-to-one transplants would defeat the obvious purpose of the law. We therefore find the district court was legally and manifestly erroneous to deny this exemption.

The portion of the judgment denying a refund of taxes paid under protest for the sale of blood and blood products will be reversed. Judgment will be rendered in favor of Willis-Knighton for a refund of local sales and use tax paid under protest on blood and blood products through the time of trial, $99,347.90, for any such taxes paid under protest after trial, and judicial interest from the date those taxes were paid.

Conclusion

For the reasons expressed, we reverse the judgment insofar as it denied the Commission’s exception of no right of action, and ordered refunds of local sales and use taxes paid by Willis-Knighton for repairs and maintenance to its nuclear cameras and for sales of medical devices. We also reverse the judgment insofar as it denied the refund of local sales and use taxes paid under protest by Willis-Knighton for sales of blood and blood products. Judgment is hereby rendered in favor of Willis-Knigh-ton and against the Commission in the amount of $99,347.90, representing taxes paid on blood and blood products under protest through the time of trial; for any such taxes paid since the time of trial; and for judicial interest from the date those taxes were paid.

Costs of appeal are assessed one-half to Willis-Knighton. The other half is not assessed. La. R.S. 13:4521.

REVERSED AND RENDERED.

APPLICATIONS FOR REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY, and MOORE, JJ.

Rehearing denied.

      . Willis-Knighton also sought a refund of taxes paid on purchases of food for patients' meals and for Title 19 drags, but these items are not issues on appeal.

      . Unlike C.O. § 10.04, the East Baton Rouge ordinance required the Director to issue a refund upon a finding of no question of fact or law and that the payment had been made in error. Under § 10.04, the refund appears to be discretionary with the Commissioner.

      . The district court utilized the "societal expectations” test as a component of the second paragraph of art. 466. R.p. 300.

      . The legislature amended Subsection D(l)(s) by 2003 La. Acts, No. 73, § 1. Effective July 1, 2003, the medical device exemption is designated as “solely for purposes of the state sales and use tax.”

      . This statute was repealed by 2003 La. Acts No. 73, effective July 1, 2003. The concept was incorporated into the individual exemptions listed in 47:305 D(l).

      . La. R.S. 47:305 D(4) was amended in 1973 to exempt drugs, wheelchairs and prosthetic devices; in 1974 to exempt patient aids; and in 1978 to exempt ostomy, ileostomy and colostomy devices.

      . R.S. 33:2717 was repealed by 2003 La. Acts, No. 73, § 2, effective July 1, 2003.