author: 1 JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. David ALEXANDER.
    No. 03-KA-1291.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Jennifer Pate, Louisiana Appellate Project, Baton Rouge, LA, for Appellant.
    John M. Crum, Jr., District Attorney, 40th Judicial District Court, Rodney A. Brignae, Assistant District Attorney, La-Place, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and THOMAS F. DALEY.
   1 JAMES L. CANNELLA, Judge.

The Defendant, David Alexander, appeals from his conviction of being a principal to a armed robbery and his sentence to 25 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm the conviction and sentence and remand.

The District Attorney for the Parish of St. John the Baptist filed a bill of information charging the Defendant with armed robbery, in violation of La. R.S. 14:64. The bill was later amended to add the statutory designation for principals, La. R.S. 14:24, and the Defendant was re-arraigned. The Defendant pled not guilty on both occasions.

On October 22, 2002, the Defendant proceeded to trial before a 12 person jury, which found him guilty as charged. On January 8, 2008, the trial judge denied the Defendant’s motions for a new trial and post-verdict judgment of acquittal. On July 2, 2003, the trial judge sentenced the Defendant to 25 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Immediately thereafter, the Defendant orally moved for an appeal. On |sJuly 9, 2003, the Defendant filed a motion to reconsider sentence, which the trial judge denied on August 25, 2003. The Defendant filed a written motion for appeal that same day and the trial judge granted the motion. The State filed a habitual offender bill of information alleging that he was a second felony offender, which he denied.

FACTS

Just before 10:00 p.im on September 10, 2001, the victim, Denise Gregoire (Gre-goire), was working at the Shell service station on Highway 51 near I — 10. She was robbed by a man, whom she later identified as co-defendant, Donald Phillips (Phillips). At trial, Gregoire described the events of that night. She related that a car pulled up to the pump, but no one exited. After a few minutes, a man exited and approached the door of the convenience store. He looked inside and returned to the car. The man exited the car again and entered the store. He picked up a beer from the cooler and placed it on the counter. The man demanded all of the money from the drawer. Gregoire did not believe that he was serious, but the man repeated his demand and showed her a gun beneath his shirt. When Gregoire gave him the money from the drawer, he also demanded the money from the safe. Gregoire told him that it would take a long time to get money from the safe. He then told her to turn around and that he would kill her if she looked at him or the car. Gregoire estimated that the man took $50. The man also took a Miller Lite beer, without paying for it.

At approximately 10:00 p.m., Deputy Scott Maillet of the St. John the Baptist Parish Sheriffs Office was dispatched to the Shell station. Gregoire was very upset and told Deputy Maillet that she had just been robbed by a black male. Gregoire described the robber, the car, and the direction in which he departed. |4Peputy Maillet related this information to his headquarters, which broadcast the information over the police radio.

Louisiana State Police Trooper Jeremy Mince testified that he was a detective with the St. John the Baptist Parish’s Sheriffs Office on September 10, 2001. Trooper Mince was off duty and was driving an unmarked Chevrolet Lumina. He had just entered I — 10 from the ramp at U.S. 51 heading toward Kenner, when he heard the call regarding an armed robbery at the Shell station and the description of the vehicle involved. Shortly thereafter, a car sped past Trooper Mince. The officer notified the Sheriffs Office that he might have seen the suspect vehicle, and followed it at rates of speed between 100 and 115 miles per hour. Trooper Mince notified the Louisiana State Police and the Jefferson Parish Sheriffs Office. Several state troopers joined the pursuit and Trooper Mince did not activate his vehicle’s police lights until the state troopers activated their lights and siren. According to Trooper Mince, the vehicle attempted to escape when the troopers tried to stop the vehicle. The vehicle was ultimately stopped when several state police units blocked the interstate near the Causeway Boulevard exit.

The Defendant was driving the vehicle and Phillips was in the passenger seat. Gregoire later identified Phillips as the robber. Trooper Mince saw the butt of a gun on the floorboard, protruding from the passenger’s seat. There were also two sixteen-ounce Miller Lite beer cans in the car. He removed $69 in cash from Phillips’ possession. At trial, Trooper Mince identified the Defendant as the driver of the vehicle.

Detective Sergeant Breaux testified that he retrieved a videotape from the Shell station surveillance recorder, which was entered into evidence and played for |fithe jury. Detective Sergeant Breaux interviewed Phillips, who denied involvement in the robbery.

In its case, the defense called Deputy Maillet and the Defendant. Deputy Mail-let was questioned about variations in the description of the suspect’s car and the direction it proceeded after the robbery. The Defendant admitted that he had a prior conviction for “auto burglary” in 2000. The Defendant also admitted that, on September 10, 2001, he was driving and Phillips was a passenger. The Defendant explained that he was driving Phillips’ car because Phillips was intoxicated. The Defendant said that he and Phillips were on their way back to New Orleans from Baton Rouge when Phillips had asked him to stop so that he could get a beer. The Defendant admitted that he stopped at the Shell station, but denied that he knew Phillips intended to rob the store. The Defendant acknowledged that Phillips had exited the car, returned without a beer, sat in the car, and exited a second time. However, the Defendant said that he did not speak to Phillips and that he was not paying attention to Phillips’ multiple entries and exits from the car. The Defendant admitted that he was possibly speeding, but denied that he was driving as fast as Trooper Mince had said. Further, the Defendant said that he pulled over when the police ordered him to do so. He also stated that he first saw the gun after the police removed it from the car. The Defendant denied that Phillips had robbed the store.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

The Defendant argues that the State impermissibly exercised its peremptory challenges to exclude potential jurors based exclusively on their race, and that, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), he is entitled to a new trial. More specifically, the Defendant argues that the trial court erred in accepting the prosecutor’s reasons for peremptorily challenging four jurors, Verlena Johnson (Johnson), Cynthia Smith (Smith), Carolyn Bossier |fi(Bossier) and Hermánese Morrison (Morrison), because the race-neutral reasons given were a pretext for discrimination.

When a defendant makes a challenge on the basis that the State has used peremptory challenges in a manner that violates the Equal Protection Clause, the defendant must first make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of a juror’s race. Batson v. Kentucky, supra. If that showing has been made, the prosecution must offer a race-neutral explanation for striking the juror in question. Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723. Then, the trial court must determine whether the defendant has carried his burden of showing purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. It is not until the third step that the persuasiveness of the prosecutor’s justification for the challenge becomes relevant. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). In the third stage, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Id.

A trial judge’s determination pertaining to purposeful discrimination rests largely on credibility evaluations, so those findings are entitled to great deference by the reviewing court. Batson, 106 S.Ct. at 1724, n. 21; State v. Taylor, 99-1311 (La.1/17/01), 781 So.2d 1205, 1211, cert. denied, 534 U.S. 844, 122 S.Ct. 106, 151 L.Ed.2d 64 (2001).

In the instant case, the State exercised peremptory challenges to excuse nine prospective jurors from the first panel. Defense counsel objected and made a Batson challenge on the basis that eight of the jurors were black. The trial judge asked the prosecutor to provide race-neutral reasons for challenging the jurors. The prosecutor stated that he challenged Bossier, a black female, because she was a teacher, who would tend to be sympathetic. The prosecutor also stated that she might have a negative feeling toward the State, since the offenders in a crime against her were not prosecuted. The prosecutor also challenged Morrison, a black female, because she was |7a social worker, who might tend to be sympathetic. He challenged Smith, a black female, because she lived in an area of high crime and because her daughter was a social worker, which might cause her to be sympathetic. Johnson, a black female, was challenged because she lived in an area of high crime, because her husband was unemployed, and because there was no testimony regarding her source of income.

The Defendant noted his objection and stated that the prosecutor had failed to challenge a white teacher, Samantha Usey (Usey). The prosecutor responded that she was a desirable juror because she had previously been on a jury that found a defendant guilty of manslaughter, which off-set the possibility of sympathy that she might have had as a teacher. The Defendant also contended that the prosecutor’s reasons for challenging Johnson and Smith were racially discriminatory because the prosecutor based the challenge on the neighborhood in which they lived. Additionally, the Defendant objected to the prosecutor’s other reasons in support of the challenge for Johnson. The prosecutor emphasized that he did not say the neighborhood was black, but that it was a high crime neighborhood. Thereafter, the trial judge found that the prosecutor had provided racially neutral valid reasons for the peremptory challenges.

We first note that the trial judge skipped the first step of the three-step Batson analysis when asking the prosecutor to supply an explanation for the State’s peremptory challenges. However, a trial judge’s demand that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense has presented enough evidence to meet the initial burden in step one. State v. Green, 94-0887 p. 25 (La.5/22/95), 655 So.2d 272, 288. Therefore, whether or not the Defendant established a prima facia showing of racial discrimination is moot. Id.

Responses by the State qualify as race-neutral unless a discriminatory intent is inherent in the prosecutor’s explanation. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, (1991); State v. Taylor, 781 So.2d at 1212. The prosecutor’s explanations, as set out above, were racially neutral. Thus, the thrust of the Defendant’s argument is on the third step.

The Defendant contends that the prosecutor’s reason for excusing Bossier was a pretext for discrimination because a white teacher was not excused. Although the State did not exercise a peremptory challenge on Usey, a white teacher, the State explained that any bias she might have had as a teacher was off-set by the fact that she was on a jury that returned a manslaughter verdict. Further, the Louisiana Supreme Court rejected a similar argument in State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 897, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), where defendant argued that the state engaged in purposeful discrimination by exercising a peremptory challenge on a black juror whose relative had been murdered, but not on white jurors whose relatives were murdered.

Bossier also stated that she was the victim of a hit and run. She said that the perpetrators were located, but were never charged. An explanation that a prospective juror might be biased toward the state under similar circumstances was upheld in State v. Moody, 587 So.2d 183, 186-187 (La.App. 3rd Cir.1991). There, the court found that the prosecutor’s reasons were not discriminatory when challenging prospective jurors on the basis of possible prejudice which they might have toward the State for not filing charges against their co-employee for a homicide, and their feelings about that homicide in general.

19Next, the Defendant contends that the prosecutor’s reasons for challenging Morrison were a pretext for discrimination because the prosecutor said Morrison was a social worker, when the record reflects that she said she was a clerical supervisor for the Department of Social Services. At the beginning of voir dire, Morrison stated that she worked for the Department of Social Services. Later, she said that she was a clerical supervisor for the Department of Social Services. We note that when argument ensued on the Batson challenge, and the prosecutor stated that Morrison was a social worker, the defense did not contradict the prosecutor’s statement. Challenges based on prospective jurors’ professions have been upheld. See, State v. Duplessy, 03-185 (La.App. 5th Cir.7/29/03), 853 So.2d 77, 82, writ denied, 03-2416 (La.2/6/04), 865 So.2d 739 where denial of a Batson challenge was not an abuse of discretion when prosecutor based his challenge on the prospective juror’s occupation as a social worker at Ri-varde Juvenile Detention Center, and might feel more biased toward rehabilitation than punishment.

Finally, the Defendant contends that the prosecutor’s explanation for challenging Johnson and Smith, because they lived in high crime neighborhoods, was a pretext for discrimination. In State v. Brown, 95-755, pp. 11, 13 (La.App. 1st Cir.6/28/96), 677 So.2d 1057, 1066, 1067, the court found no abuse of the trial court’s discretion in accepting the prosecutor’s reasons for excluding prospective jurors when the prosecutor provided reasons that included “living in a bad neighborhood” and “being unemployed.” (Emphasis in the original).

In State v. Hobley, 98-2460, p. 22 (La.12/15/99), 752 So.2d 771, 784-785, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000), the Supreme Court concluded that the defendant failed to meet his burden of showing |inpurposeful discrimination when the defense did not dispute the explanations (of inattentiveness) given by the prosecutor nor develop a record of evidence contradicting those explanations. The Supreme Court also noted that the state had provided reasons other than inattention when explaining the challenges of other black jurors. The Hobley court pointed out that,

when the prima facie showing was presumed because the state was asked to tender explanations for the challenges, defendant cannot simply rest on a written record and require that we second guess the trial judge’s credibility determinations, which are necessarily based on his visual observations.

Id. at 784.

In the present case, the Defendant objected to the prosecutor’s explanation for challenging Smith and Johnson on the basis of living in a high crime neighborhood because “that’s possibly not a race neutral reason, depending on where they live.” However, the Defendant did not dispute that these two jurors did live in a high crime area nor did he make any showing that these neighborhoods were predominately black. Further, the record reflects that the State provided reasons other than residence when explaining the challenges for the other black jurors. The prosecutor did not mention race when providing explanations for challenging Smith or Johnson. We find that the Defendant did not show that the challenges based on residence were a surrogate for race.

A trial judge’s determination pertaining to purposeful discrimination rests largely on credibility evaluations and the findings are entitled to great deference by the reviewing court. Batson, 476 U.S. at 98, 106 S.Ct. at 1724, n. 21; State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703, 726, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998). The trial judge was in the best position to determine the prosecutor’s sincerity in his reasons for challenging the prospective jurors. See, State v. Jackson, 03-0417, p. 6 (La.App. 5th Cir.10/28/03), 860 So.2d 134, 137. Considering the voir dire in its entirety, we find no error in the ruling by the trial court denying the Defendant’s Batson challenges and his Motion for New Trial grounded on the Batson argument. These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER THREE

The Defendant argues that his sentence is excessive. The Defendant contends that his 25 year sentence without benefit of parole, probation or suspension of sentence is constitutionally excessive because this is his first conviction for a crime of violence, he had minimal participation in the offense, and he was only 33 years old at the time of the offense.

Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, of 1974, art. I, § 20. A sentence is generally considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Richmond, 98-1015 (La.App. 5th Cir.3/10/99), 734 So.2d 33. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. The trial judge is afforded wide discretion in determining a sentence and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D); State v. Richmond, 98-1015 at 8, 734 So.2d at 38.

hgThe penalty for armed robbery is imprisonment at hard labor for not less than ten years and not more than 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B).

Before imposing sentence, the trial judge noted his awareness of the pre-sen-tence investigation report. The judge observed that the Defendant had an extensive arrest record, and that the Defendant would be “at least a third offender.” In mitigation, the judge observed that the Defendant did not actually have the weapon. However, the judge recognized that the Defendant was actively involved in the robbery because he drove the “getaway” car. The judge also noted that a weapon was involved and that armed robbery was a serious offense.

The record reflects that the victim was terrified after the robbery. Deputy Mail-let testified that the victim was crying and hysterical to the point that Deputy Maillet was concerned that she might need medical attention. Although the Defendant did not wield the gun during the robbery, the evidence reflects the Defendant drove the vehicle that provided a means of escape for Phillips after he had robbed Gregoire with a gun. Further, the evidence also indicates that the Defendant traveled at excessive rates of speed (100 to 115 miles per hour) while Trooper Mince followed the Defendant on I — 10. Additionally, Trooper Mince’s testimony indicates that the Defendant attempted to evade the officers when they tried to stop his vehicle.

In State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court stated that sentences of 35 to 50 years have been found to be acceptable for first offenders convicted of armed robbery, citing State v. Augustine, 555 So.2d 1331, 1332 (La.1990), and State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d 49, 50. Based on the trial judge’s remarks and the pre-sentence investigation report that is in the record, the Defendant is not a first |13offender. However, his 25 year sentence is below the range approved for first offenders convicted of armed robbery.

When reviewing a sentence on appeal, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2, (La.10/12/01), 799 So.2d 461, 462. Armed robbery is a serious offense against the person. See, State v. Francois, 01-807, p. 5 (La.App. 5th Cir.4/10/02), 817 So.2d 213, 216. Considering the circumstances surrounding the robbery and that this sentence is actually below the range approved by the Louisiana Supreme Court for first offenders who have committed armed robbery, we do not find that the imposed sentence is constitutionally excessive. This assignment of error lacks merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). The following error is noted.

The record reflects that the trial court failed to properly advise the Defendant of the prescriptive period for filing for post-conviction relief pursuant to La.C.Cr.P. art. 930.8 in that the trial judge failed to indicate when the period began to run. Rather, it was simply stated that the Defendant had a “two year prescriptive period in which to file for post-conviction relief.” Therefore, we remand the case and order the district court to inform the Defendant of the provisions of La.C.Cr.P. art. 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this Court’s opinion and to file written proof in the record that the Defendant received the notice. See, State v. Ledesma, 01-1413, p. 8 (La.App. 5th Cir.4/30/02), 817 So.2d 390, 394-395.

1 ! ¿Accordingly, for the reasons stated above, the Defendant’s conviction for armed robbery and his sentence to 25 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence are affirmed. The case is remanded to the district court to provide proof in the record of the Defendant’s receipt of appropriate notice, under La. C.Cr.P. art. 930.8, of the prescriptive period for post conviction relief.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED

      . Co-defendant, Donald Phillips, was charged with armed robbery and with being a felon in possession of a firearm, but according to a motion filed by the Defendant, he died before he was tried.

      . The record does not reflect whether the Defendant stipulated to the bill of information, a hearing was held, or the Defendant received a habitual offender enhanced sentence.

      . The State also presented the testimony of Lieutenant Harry Troxlair, who testified about the chain of custody of the gun, clip, and the beer cans.

      . Defense counsel refers to Morrison’s first name as “Carolyn” in his brief, but the record reflects that her first name was Hermánese.

      . See also, La.C.Cr.P. Art. 795.

      . We note that a prospective juror’s residence in a "high crime” neighborhood is included among the list of acceptable reasons for exercising peremptory strikes in the State of Mississippi. See, Baldwin v. State, 784 So.2d 148, 155 (Miss.2001). "Acceptable reasons include but are not limited to, living in a 'high crime’ area, body language, demeanor, prosecutor's distrust of the juror, inconsistency between oral responses and juror’s card, criminal history of juror or a relative, including driving under the influence (DUI), social work and other types of employment, and religious beliefs.”

      . The prosecutor explained the challenge of Heather Wilson, a black female, because she was a teacher, who would tend to be sympathetic, and because her brother was charged with a crime and was awaiting trial. The prosecutor challenged Wondell Wesley, a black male, because he admitted that he was convicted of flight from an officer. Betty Tucker, a black female, was challenged because her son was in jail and her brother was in jail for armed robbery. Shelia Foster, a black female, was challenged because she had a relative who was convicted of armed robbery and because she worked for the school board and might be sympathetic.

      . Compare, State v. Harris, 01-408, pp. 6-8 (La.6/21/02), 820 So.2d 471, 474-476, which held that the State's explanation for excluding a prospective juror based on living near the crime was a pretext for race, where the prosecutor first said that the prospective juror should be excluded because he was “the only single black male on the panel with no children.”

      . A writ was filed with the Louisiana Supreme Court on December 22, 2003 (No. 2003-KO-3506). As of the date of the writing of this memorandum, there has been no action.

      . Although the State has filed a habitual offender bill of information against this Defendant, we have no information indicating that the Defendant has been re-sentenced. Therefore, we will consider the assignment of error. State v. Gilbert, 99-2338 (La.2/4/00), 758 So.2d 779.


source: Caselaw Access Project

author: LSOL GOTHARD, Judge.

license: Public Domain

text:
    Daphne LERAY, Glenn LeRay and Elaine LeRay v. Dr. Bradley J. BARTHOLOMEW, Jr., Dr. Stephen Mallernee, and Hospital Service District No. 1 of Terrebonne Parish, a/k/a Terrebonne General Hospital.
    No. 03-CA-1370.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      George E. Cain, Gary L. Hanes, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, M. Keith Prudhomme, Thomas P. Leblanc, Lundy & Davis, L.L.P., Lake Charles, LA, for Intervenor/Appel-lant (Louisiana Patients’ Compensation Fund).
    Joseph A. Reilly, Jr., Stacy A. Le-compte, Carl T. Conrad, Henderson Reilly & Boudreaux, Houma, LA, for Defendant/Appellant (Dr. Bradley Bartholomew).
    Darryl J. Carimi, Carimi Law Firm, Me-tairie, LA, Jerald P. Block, Matthew F. Block, Block Law Firm, Thibodaux, LA, for Plaintiffs/Appellants (Daphne LeRay, Glenn LeRay and Elaine LeRay).
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   LSOL GOTHARD, Judge.

This is an appeal by defendant, Dr. Bradley Bartholomew, and the Louisiana Patients’ Compensation Fund (LPCF), from an adverse judgment after a jury trial on a medical malpractice claim.

This matter was begun with the filing of a petition for damages by Daphne LeRay and her parents, Glenn and Elaine LeRay, after a finding by the Medical Review Panel that there was no breach of standard of care that constituted medical malpractice. The petition asserts that Daphne LeRay was injured in a traffic accident on October 15,1995 and taken to Terrebonne General Medical Center (TGMC) for emergency treatment. The plaintiffs allege that the two treating physicians, Dr. Stephen Mallernee and Dr. Bradley J. Bartholomew, violated the standard of care and are liable in medical malpractice for causing Daphne’s quadriplegia. In the original petition, plaintiffs name Dr. Mallernee, Dr. Bartholomew and TGMC as defendants. TGMC filed a declinatory exception of improper venue, arguing that it is properly referred to as “Hospital Service District No. 1 of the Parish of Terrebonne, State of Louisiana, the Owner and Operator of Ter-rebonne General Medical Center,” a political subdivision of the State of Louisiana, domiciled in the Parish of Terrebonne, and as such must be sued in District Court of Terrebonne Parish. In a subsequent consent judgment the exception was granted and plaintiffs’ claim against TGMC was transferred to the 32nd Judicial District Court, Parish of Terrebonne, State of Louisiana. The remainder of plaintiffs’ claims against Dr. Mallernee and Dr. Bartholomew remained in the 24th Judicial District Court, Parish of Jefferson.

|Jn a “First Amending and Supplemental Petition,” plaintiffs alleged that the $500,000.00 cap for damages for injuries sustained as a result of medical malpractice pursuant to La. R.S. 40:1299 et seq. is unconstitutional. The LPCF filed an intervention defending the constitutional challenge to the medical malpractice statute made by plaintiffs, and a motion to sever trial of the issue of constitutionality.

After a trial on the merits, the jury rendered a decision finding medical malpractice by both doctors and assessing 10% of the fault to Dr. Mallernee and 90% to Dr. Bartholomew. The jury found in excess of $9,000,000.00 in damages. The jury findings were reduced to written judgment, and in accordance with La. R.S. 40:1299 et seq., each doctor was cast in judgment for $100,000.00. Further, the LPCF was cast in judgment for $300,000.00. The judgment also casts LPCF in judgment for the sum of $898,190.34 for future medical care and related benefits previously incurred, and authorizes Daphne LeRay to make a claim to the LPCF for all future medical care and related benefits directly or indirectly made necessary by the defendants’ malpractice in accordance with La. R.S. 40:1299.43. Defendant doctors and the LPCF were cast in judgment for costs. The judgment further reserved plaintiffs’ right to contest the constitutionality of La. R.S. 40:1299 et seq., and the judgment was designated as final and appealable by the trial court.

Dr. Mallernee filed a motion for a judgment notwithstanding the verdict, and Dr. Bartholomew filed a motion for a judgment notwithstanding the verdict, or in the alternative, a new trial. Both motions were denied by the trial court.

In a subsequent judgment costs, including court costs, expert witness fee, and medical records costs, were assessed at $119,195.89, divided according to percentages of fault between the two doctors.

The LPCF filed appeals from both the substantive judgment and the judgment taxing costs. Dr. Bartholomew filed a motion for new trial on the | ¿judgment taxing costs, which was denied. Dr. Bartholomew subsequently filed a motion for appeal on both judgments. Dr. Mallernee did not appeal.

FACTS

The record shows that Daphne LeRay, an eighteen-year-old college freshman, was riding in a vehicle driven by Jamie Adams on the evening of October 15, 1995, when she was involved in a one-vehicle accident. The vehicle in which she was riding overturned, causing the roof to compress on the passenger side. Although Daphne was able to move all of her limbs, paramedics who arrived at the scene suspected she might have a cervical injury. Because of the dangerous situation, paramedics took extraordinary precautions to stabilize her cervical spine. They affixed a hard cervical collar and rigid long-spine board during the course of extracting Daphne from the vehicle. She was taken, fully restrained, by air ambulance to TGMC for emergency treatment. Medical personnel who attended Daphne described her as coming in and out of consciousness. Paramedics testified that while they attempted to strap her down and insert needles for intra-veineous fluids, she was resisting with strength in both arms and legs.

According to testimony which is undisputed, Daphne suffered a closed-head injury and three broken cervical bones as a result of the accident. At TGMC Daphne was immediately seen by Dr. Stephen Mal-lernee, the emergency room physician. Shortly thereafter, Dr. Bradley Bartholomew, a neurosurgeon, was attending Daphne as well. The doctors intubated her to guarantee the integrity of the airways and ordered diagnostic tests including a cross-table lateral x-ray and a CT scan of her head and abdomen. No CT scan of her cervical spine was ordered.

About two and one-half hours after she arrived at TGMC, Daphne was transferred to the intensive care unit (ICU). Although there is conflicting testimony about when the collar was actually removed, Daphne arrived in ICU | ¿without the restraint. Medical records show that defendant doctors had “cleared” her cervical spine of any instability, making the collar unnecessary.

She was exhibiting movement in all four extremities for at least fourteen hours after her arrival in ICU. Daphne was moving her head from side to side and attempting to get up. However, about forty-eight hours after the accident, her motion decreased and attending nurses called Dr. Bartholomew. He ordered a CT scan of Daphne’s spine and found fractures at the C4, C5, and C6 levels. Dr. Bartholomew immediately modified his diagnosis to include “unstable spine” and reinstated the cervical collar and other restraints against body movement. Unfortunately for Daphne, the damage to the spinal cord had been done and a subsequent surgery to stabilize the area was unsuccessful in reversing any of the damage. As a consequence Daphne is characterized as a “motor non-functional incomplete quadriplegic” with no realistic prospect of improvement. Currently Daphne is confined to a wheelchair and has minimal control of her body below the C5 level.

LAW

Both Dr. Bartholomew and the LPCF filed a brief in this court arguing separate issues. However, neither appellant challenges the finding of malpractice. Therefore, that issue is not before us and will not be addressed in this opinion.

Dr. Bartholomew assigns three errors for our review, as follows:

(1) The trial court committed manifest error by rendering judgment against Dr. Bartholomew, an individual physician, as opposed to the Patients’ Compensation Fund, for the taxation of costs incurred by the plaintiffs in this matter.
(2) The trial court committed manifest error by awarding costs related to those expenses incurred pre-offer of judgment by the plaintiffs.
(3) The trial court committed manifest error and/or abuse of discretion in awarding the plaintiffs their expert fees related to expenses incurred in consultation which only assisted the plaintiffs’ attorney in his preparation of preparing the matter for litigation.

|7The LPCF also assigns three errors for our review as follows:

(1) The trial court committed reversible error by failing to include Jamie Adams and Terrebonne General Medical Center as possible tortfea-sors on the jury’s verdict form in spite of evidence presented at trial that either or both of these entities were at least partially responsible for the plaintiffs injuries.
(2) The trial court committed reversible error by accepting the jury’s finding of an award of past custodial care to the plaintiff based on 24-hour care for the preceding seven years despite uncontradicted evidence that the plaintiff has been able to function independently and without the need for constant supervision for significant periods of the day during that time.
(3) The trial court committed reversible error by making an assessment of costs pursuant to Article 970 of the Louisiana Code of Civil Procedure because such an assessment is not justified by the facts and relevant law. In the alternative, any award of costs under Article 970 should be the responsibility of the individual defendants and not the LPCF.

In a supplemental brief to this court, the LPCF assigns another error:

(1) The trial court lacked the necessary subject matter jurisdiction to make an award of past medical costs and related expenses to the plaintiffs, thus rendering that portion of the trial court’s judgment null and without effect.

Because all three of Dr. Bartholomew’s assignments and one of the LPCF’s assignments relate to the assessment of costs pursuant to La. C.C.P. art. 970, we will begin with that issue. Both the LPCF and Dr. Bartholomew argue the trial court erred in awarding costs under article 970. Further, both parties argue in the alternative, that any assignment of costs this court validates pursuant to article 970 should be assessed to the other party. Therefore, we must decide whether the costs pursuant to article 970 were properly assessed and if so, whether they were properly assessed against both doctors and not against the LPCF.

La. C.C.P. art. 970 provides in pertinent part:

A. At any time more than thirty days before the time specified for the trial of the matter, without any admission of liability, any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them. The offer of judgment shall be in writing and state that it is made under this Article; specify the total amount of money of the settlement offer; and specify whether Isthat amount is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule. Unless accepted, an offer of judgment shall remain confidential between the offeror and offeree. If the adverse party, within ten days after service, serves written, notice that the offer is accepted, either party may move for judgment on the offer. The court shall grant such judgment on the motion of either party.
B. An offer of judgment not accepted shall be deemed withdrawn and evidence of an offer of judgment shall not be admissible except in a proceeding to determine costs pursuant to this Article.
C. If the final judgment obtained by the plaintiff-offeree is at least twenty-five percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant-offeree is at least twenty-five percent greater than the amount of the offer of judgment made by the plaintiff-offeror, the offeree must pay the offeror’s costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.

In Landry v. Leonard J. Chabert Medical Center, 02-1559 (La.App. 1 Cir. 5/14/03), 858 So.2d 454, writ denied 03-1748, 03-1752 (La.10/17/03), 855 So.2d 761, the First Circuit summarized the law as to the purpose of article 970. In Landry, the court stated:

The function of article 970 is to compensate the rejected offeror who was forced to incur greater trial litigation costs than he would have if the defendant had accepted his settlement offer. The article is punitive in nature and therefore must be strictly construed, (citations omitted)

Id., 858 So.2d at 466

The issue of whether article 970 can be applied in medical malpractice issues is one that has not been definitively decided to date. We note initially that, although La. R.S. 40:1299.41 et seq. generally restrict damages for malpractice to the $500,000.00 cap, there are provisions in the law for additional damages, including future medical care. As to the issue at hand, we note that La. R.S. 40:1299.42 B(1) provides:

The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost, (emphasis ours)

laAs previously stated the trial court rendered judgment assessing costs of litigation including court costs, expert fees and medical records totaling $119,195.89. The record shows that an offer to each defendant doctor to settle for $100,000.00 was made by the plaintiff on September 4, 2002. In the judgment, the trial court found “as a matter of fact that the Judgment rendered exceeded the Offer of Judgment dated September 4, 2002 by more than 25%.” Neither party disputes the finding of fact that the offer was made and rejected, or that the amount of judgment exceeds the offer made by 25%.

Dr. Bartholomew argues that the trial court erred in casting the individual physicians in judgment for the costs, and in the alternative, the amounts awarded are excessive and/or unsubstantiated.

The LPCF argues the offer made by defendants to each defendant doctor of $100,000.00 was the maximum amount of their exposure. Therefore, there was no incentive to accept the offer and there was no unreasonableness in the rejection of the offer. The LPCF reasons that, because the provisions of article 970 are punitive, an element of unreasonableness in the rejection of the offer is implied. In the alternative, The LPCF argues any assessment of costs this court finds valid should be assessed to the defendant doctors individually and not against the LPCF.

The statute is clear that costs in amounts over the cap are permissible. While we are in agreement with LPCF’s assertion that the provisions of article 970 are punitive and must be strictly construed, we are mindful also that the Medical Malpractice Act’s limitations on liability of qualified health care providers are special legislation in derogation of rights of tort victims. Pendleton v. Barrett, 95-2066 (La.5/31/96), 675 So.2d 720, overruled on other grounds by Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/97), 699 So.2d 365. In Pendleton, the Supreme Court explained that, “(b)ecause the statute grants immunities or advantages to a special class in derogation of general rights, it must |inbe strictly construed against limiting the tort claimant’s rights against the wrongdoer.” Id., 675 So.2d at 725.

The reasoning in Pendleton is supported by the legislative intent in enacting the Medical Malpractice Act and the general rule of law. After the Medical Malpractice Act was enacted in 1975, it was subjected to constitutional challenges. In upholding the constitutionality of the statute, the Supreme Court reviewed the legislative purpose of the act. In Everett v. Goldman, 359 So.2d 1256, 1261 (La.1978), the Supreme Court stated:

Prior to 1975, medical malpractice claims whether asserted in tort or contract were treated under our law much like other tort or contract claims. In that year, however, reacting to what it considered a crisis in the delivery of medical services to the people of this state, a crisis ostensibly prompted by prohibitive costs in connection with medical malpractice insurance, the state legislature passed several statutes which for simplicity we will refer to as the Medical Malpractice Act of 1975.
The valid state purpose said to be served by the two provisions of the medical malpractice act before us is the lowering of the cost of health care generally and the assuring of available medical care for the citizens of the state.
Id., 359 So.2d at 1266

Having found the award of costs pursuant to La. C.C.P. article 970 was valid, we now turn to the issue of which defendant can be assessed with the cost. La. R.S. 40:1299.42 provides in pertinent part:

(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.

We believe La. R.S. 40:1299.42 B is clear that the limitation of liability for a qualified health care provider is $100,000.00 plus interest. However, liability of LPCF is limited to $500,000.00 plus interest and cost. We find support for this position in • Gladney v. Sneed, 32,107 (La.App. 2 Cir. 8/18/99), 742 So.2d 642, writ denied, 1999-2930 (La.1/14/00), 753 So.2d 215. In Gladney, the court ruled | nthat the assessment of court costs could not be made against a qualified health care provider. While Gladney only concerned court costs and did not involve a taxation of costs pursuant to article 970, we believe the rational in Gladney holds true in the case before us, and we adopt its rational. Therefore, we find the trial court erred in taxing costs to Dr. Bartholomew, and we amend the judgment taxing costs pursuant to La. C.C.P. art. 970 to name only the LPCF.

Because we find merit in Dr. Bartholomew’s argument that costs should not be assessed against qualified health care providers, we pretermit any discussion of the excessiveness of the amounts of the costs as raised by Dr. Bartholomew.

In two assignments of error, the LPCF argues that the trial court erred in its award to plaintiffs for future medical expenses. In the initial assignment, the LPCF argues the award for custodial care to Daphne’s mother, Elaine LeRay, as part of the award for “future medical care and related benefits, which have previously been incurred” is excessive. In a supplemental assignment of error, the LPCF argues that the trial court lacked subject matter jurisdiction to make any award for future medical and related expenses pursuant to La. R.S. 40:1299.43 B.

As previously stated, the jury found in excess of $9,000,000.00 in damages. Interrogatories show that the jury found the patient was in need of future medical care and related expenses. The jury findings also include medical expenses and related costs that were incurred between the time of the accident and the date of trial. Those costs include findings that Elaine LeRay is entitled to compensation for services rendered to her daughter in the amount of $368,000.00, and that Glenn LeRay is entitled to compensation in the amount of $46,000.00 for similar services.

In the written judgment that memorialized the findings of the jury, the trial court awarded $898,190.34 in “future medical care and related benefits, which have previously been incurred,” including the amounts for payment to Elaine and | ^Glenn LeRay for custodial care. The judgment also notes that the jury found Daphne to be:

.in need of future medical care and related benefits, which pursuant to La. Rev.Stat. 40:1299.43, authorized and enables Daphne LeRay to make a claim to the patient’s compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the defendants’ malpractice together with legal interest on said sum from the date of filing with the medical review panel or the date the expenses were incurred, whichever is later, until paid.

Although the jury interrogatories show a finding that these benefits exceed $8,000,000.00, no specific monetary award was made by the trial court in the final judgment.

We will consider the second argument made by the LPCF regarding the award of future medical damages first. As we understand the LPCF’s argument, the assertion is that the trial court is without jurisdiction to make an award of future medical expenses and related benefits in general. There is no distinction in the LPCF’s argument between future medical benefits and related benefits already incurred, as the award for custodial care to Daphne’s parents, and the declaration that Daphne is in need of medical care in the future, authorizing her to make claims to the LPCF for payment.

In support of its position, the LPCF cites Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, rehearing denied, 93-1142 (La.3/25/94), 635 So.2d 247. The LPCF argues that the holding in Kelty is that the District Court lacks subject matter jurisdiction to make an initial adjudication of an award of medical expenses, and that the LPCF has exclusive jurisdiction over the initial determination of Section 43 costs. We find that the LPCF’s reliance on Kelty v. Brumfield, supra is misplaced. We find Kelty to be clearly distinguishable. In Kelty the plaintiffs, parents of a child who suffered brain damage as a result of medical malpractice, did not get a certification of entitlement to future medicals at | isthe time of the judgment of malpractice. In three subsequent court proceedings, the plaintiffs moved the district court for a certification that the child is in need of future medical care. In the final proceeding, the trial court granted a defense exception of res judicata and the appellate court affirmed. The Supreme Court reversed after considering several matters of jurisdiction and res ju-dicata. In the conclusion of the case, the Supreme Court found that plaintiff was a patient in need and entitled to receive compensation, and ordered the LPCF to accept and respond to claims made by plaintiffs.

It is also important to note that at the time of the plaintiffs’ claim in Kelty, an earlier form La. R.S. 40:1299.43 existed, which did not allow benefits for future medical care and related benefits as it does in the current version. When the statute was amended by Act 435 of 1984, the legislature made it applicable to claims filed on or before September 1, 1984. Subsequently, the Supreme Court declared the restriction on retroactive application of the amendment that provided such coverage unconstitutional, and reformed Section 43 of the MMA to make it applicable to all “claims and litigation pending when it was passed.” Williams v. Kushner, 549 So.2d 294, 297 (La.1989). Thus, plaintiffs in Kelty had to file an action after trial and settlement for the additional benefits.

As it applies to the case at bar, La. R.S. 40:1299.43 B (1) provides as follows:

“Future medical care and related benefits” for the purpose of this Section means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, after the date of the injury.

Further, La. R.S. 40:1299.43 A. (1) mandates that, in a medical malpractice trial the “jury shall be given a special interrogatory asking if the patient is in need of future medical care and related benefits and the amount thereof.” (emphasis ours). La. R.S. 40:1299.43 D provides that:

| uPayments for medical care and related benefits shall be paid by the patient’s compensation fund without regard to the five hundred thousand dollar limitation imposed in R.S. 40:1299.42.

La. R.S. 40:1299.43 C provides that:

Once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits or a settlement is reached between a patient and the patient’s compensation fund in which the provision of medical care and related benefits is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a claim to the patient’s compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider’s malpractice unless the patient refuses to allow them to be furnished.

Therefore, we believe the statutory structure intends for the trier of fact to determine an amount for compensable damages for future medical expenses pursuant to the Medical Malpractice Act, which are then administered by the Oversight Board of the LPCF. Support for this position can be found in Supreme Court cases which examine Section 43, including Kelty. In Kelty, supra, 633 So.2d at 1217, the court explained the claim for future medical benefits in the Medical Malpractice Act is a “special statutory creation inherently different from a general tort law claim for money judgment for damages.”

In Hall v. Brookshire Bros., LTD, 02-2404, 02-2421 (La.6/27/03), 848 So.2d 559, the jury awarded a medical malpractice plaintiff $35,251.43 for past medical expenses and made a determination that she was in need of future medical care assessed at a cost of $3,862,835.00. In considering the issue of interest due on the award, the Supreme Court explained that interest on that portion of the judgment for past medical expenses was due, because the award represented “ ‘future’ medical expenses that have already been incurred.” Id., 848 So.2d at 576. However, since the award for future medical care represented expenses not yet incurred, no interest was due. Id.

In Coleman v. Deno, 99-2998 (La.App. 4 Cir. 11/6/02), 832 So.2d 1016, writ denied, 03-166, 03-167, 03-168 (La.9/19/03), 853 So.2d 635, the Fourth Circuit, on remand from the Supreme Court on other issues, did not find that a jury finding of $500,000.00 for future medical expenses in a Medical Malpractice case was excessive. The court also noted that the affirmation of a jury finding that a patient is in need of future medical expenses triggers the applicability of La. R.S. 40:1299.43(C). Id., 832 So.2d at 1030.

In the instant case the interrogatories sent to the jury were proper under the statute, and the finding that the plaintiff is in need of future medical care and related benefits pursuant to La. 40:1299.43 was noted correctly in the final judgment that memorialized the jury findings. The judgment further authorizes plaintiffs to make claims for such expenses to the LPCF, without entering a judgment on the exact sum. The only money judgment related to this issue is the award of $898,190.34 for medical expenses and related benefits already incurred. The trial court correctly made the distinction between medical expenses and related benefits incurred between the accident and the date of trial, and future medical expenses which will occur after trial. In recognizing this difference, the trial court correctly reduced the past medical expenses to a money judgment, but merely acknowledged the right of plaintiffs to bring a claim for any future medical expenses to the LPCF. We find that to be correct and within the trial court’s grant of jurisdiction. Therefore, we find no merit in the LPCF’s argument that the trial court was without jurisdiction to send the question of need for future medical expenses and the amount to the jury, and in reducing the jury finding to a written judgment.

We will now consider the LPCF’s argument that a portion of the amount awarded in the final judgment is excessive. The argument on this issue is restricted to that portion of the judgment which awards funds for related expenses already | ^incurred. Specifically, the jury determination that Daphne’s mother, Elaine LeR-ay, should be awarded $368,000.00 in compensation for custodial care rendered to her daughter in the seven years between the accident and the trial is at issue. The LPCF asserts that the award was calculated on a rate of $6.00 per hour for twenty-four hour care during the time period. The LPCF argues that the amount is excessive in view of the fact that Daphne’s father, Glenn LeRay, was also awarded $46,000.00 for custodial care, which amounts to a $6.00 per hour rate for three hours a day. The LPCF maintains that the parents are non-professional caretakers and must show a need for the services, establish the reasonableness of the fee, and prove the duration of the care. The LPCF suggests that a more appropriate amount for compensation to Elaine LeRay is $245,280.00, calculated by reimbursement for only sixteen hours a day at the rate of $6.00 per hour.

In Bower v. Schumpert Medical Center, 618 So.2d 600 (La.App. 2 Cir.1993), the Second Circuit considered a LPCF’s rule prohibiting payments to relatives of patients for nursing care and custodial care provided to a patient, and found it invalid. In Bower, the parents of a daughter who suffered from cerebral palsy, spastic quadriplegia and seizure disorder as a result of neonatal asphyzia, filed an action under the Medical Malpractice Act. After a settlement with one qualified provider and dismissal of the other, the LPCF was added to the lawsuit. After a trial on the merits, the trial court entered judgment in favor of plaintiffs awarding recovery for past care which they rendered to their daughter and found they were entitled to future care benefits. The court found that Mrs. Bower was entitled to $9.00 per hour for regular custodial care and $12.00 an hour for the hours she spent giving her child therapy. The total award for this care amounted to $198,234.00.

On appeal the LPCF argued that its rule prohibiting payment to family members for custodial care prohibited recovery. The Second Circuit disagreed and 117found that the rule promulgated by the LPCF was invalid and could not be used as authority to bar recovery. The court further found that general tort principles apply even though the LPCF is not a tortfeasor, and ruled that the issue of payment to family members in medical malpractice matters must be considered on a case by case basis. Thus, the court used general tort law which allows a plaintiff to be compensated for medical attention and nursing services rendered gratuitously. Id., 618 So.2d at 605. In so doing the Bower court cautioned that a claim for nursing services rendered gratuitously by nonprofessional family members must be closely scrutinized as to the need for the services, the reasonableness of the fee and the extent and duration of the services. Id. (citing Tanner v. Fireman’s Fund Insurance Companies, supra, 589 So.2d 507 (La.App. 1 Cir.1991), unit denied 590 So.2d 1207 (La.1992)).

After reviewing the facts using the above criteria, the Bower court found that the rates paid and the hours compensated were reasonable, and the need for the services, and the extent and duration were not disputed. The award was affirmed.

In the instant case, the LPCF admits that there is medical testimony from Dr. Todd Cowen, the physician in charge of plaintiffs rehabilitation, to show that Daphne is in need of twenty-four hour a day care. However, the LPCF argues that other testimony and evidence show that Daphne is able to drive a specially-equipped van and leave the house alone for social events. In conclusion, the LPCF argues that a more appropriate award for custodial care rendered to Daphne by her mother is $245,280.00 representing sixteen hours a day.

The record shows that Daphne’s injury is classified as a “C5 quadriplegia”. Everything below that level was affected. She has only limited movement of her upper arms and is confined to a wheel chair permanently. She suffers from a loss of bowel and bladder control. According to expert testimony, Daphne is unable to perform basic functions. She cannot prepare her own food or dress herself. She |1scan turn herself over onto one side only if she has a bed railing close by, but cannot turn over on the other side. She is unable to move enough to get up from a reclining position and must wait until someone moves her. She can only be left in a sitting position unattended for a short period of time, because she cannot right herself if she falls over. She must be placed in her wheelchair and strapped in by someone else. She is unable to move from her wheelchair by herself. While it is true that she is able to attend classes on her own, her mother must be on twenty-hour call for emergencies. Daphne must use a catheter, which she can insert by herself if she has help laying down and getting up again.

The jury viewed a video tape showing Daphne in her wheelchair attempting to perform basic functions. The tape shows what daily life is like for Daphne and the jury was able to see firsthand how necessary is her mother’s care.

The standard of review of damages awarded by a jury is manifest error/abuse of discretion. As recently summarized by the Third Circuit in Hall v. Brookshire Bros., Ltd., 831 So.2d at 1026, decision affirmed by, 2002-2404, 2002-2421 (La.6/27/03), 848 So.2d 559:

Damages for loss of earning capacity and for past and future medical expenses are special damages. They can be established to a reasonable mathematical certainty or with relative certainty. Wainwright v. Fontenot, 00-492 (La.10/17/00); 774 So.2d 70; Whitehead v. Kansas City S. Ry. Co.[,] 99-896 (La. App. 3 Cir. 12/22/99); 758 So.2d 211, writ denied, 00-0209 (La.4/7/00); 759 So.2d 767. “The discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages.” Eddy v. Litton, 586 So.2d 670, 675 (La. App. 2d Cir.1991), writ denied, 590 So.2d 1203 (La.1992). Such damages are, however, still subject to the abuse of discretion standard of review. Wainwright, 774 So.2d 70.

Using the above standard, we cannot find the jury abused its discretion in the award of special damages to Elaine LeRay for reimbursement of custodial care rendered to her daughter.

|19In the final assignment for our review, the LPCF argues the trial court committed reversible error in refusing to include Jamie Adams, the driver of the vehicle in which Daphne was injured, and TGMC as possible tortfeasors on the jury verdict form. At trial defendants objected to the proposed verdict form to be presented to the jury on the basis that it did not allow the jury to assess any fault as it relates to the driver of the vehicle in which Daphne was injured, or the hospital to which she was taken. After consideration the trial court stated, “I did not find from the evidence presented that there was any testimony from either side, in my opinion, whereby these parties were shown to be at fault. There was just no evidence.”

La. C.C. art. 2323 A provides as follows:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

Recently, in Hall v. Brookshire Bros., LTD., 2002-2404, 2002-2421 (La.6/27/03), 848 So.2d 559, our Supreme Court considered the propriety of quantifying victim and third-party fault in suits against the LPCF. The Hall court explained:

Louisiana Civil Code article 2323 requires that the fault of every person responsible for a plaintiffs injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted. As we explained in Dumas v. State, Department of Culture, Recreation & Tourism, 2002-0563 (La.10/15/02), 828 So.2d 530, 537: “The comparative fault article, La. C.C. art. 2323, makes no exceptions for liability based on medical malpractice; on the contrary, it clearly applies to any claim asserted under any theory of liability, regardless of the basis of liability.” Thus, in the trial against the Fund, wherein the plaintiff retains the burden of proving that the admitted | gninalpractice caused damages in excess of $100,000.00, evidence that victim or third party fault caused any of the damages is clearly relevant and admissible, (some citations and footnotes omitted)
Id., 848 So.2d at 567-568

Accordingly, we find that evidence of fault on the part of the driver of the vehicle and the hospital to which Daphne was taken is clearly admissible under general principles of law. However, in the matter before us, the admission of evidence of third-party fault is not at issue. The issue for our review is whether the trial court should have allowed the jury to decide if, based on the evidence presented at trial, there was fault on the part of the driver and the hospital.

La. C.C.P. art. 1813 provides in pertinent part:

A. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.
B. The court shall inform the parties within a reasonable time prior to their arguments to the jury of the general verdict form and instructions it intends to submit to the jury, and the parties shall be given a reasonable opportunity to make objections.

The trial court submitted interrogatories to the jury on questions of liability and apportionment of damages as it relates to the two doctors, but refused a request to include questions on the possible liability of third-party tortfeasors, because it found no evidence of any fault on the part of the driver of the vehicle or TGMC was presented at trial. Because third-party fault is an issue properly before the court in this case, and evidence of such is admissible, we find the jury should have been allowed to weigh the evidence admitted at trial and decide the issue. The problem is further compounded because the jury was not instructed on the allocation of fault in accordance with La. C.C. art. 2323.

12iThe proper standard for appellate review of questions of law is simply whether the court’s interpretive decision is legally correct. If the trial court’s decision was based on its erroneous interpretation or application of law, rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference by the reviewing court. Franklin Southland Printing Co., Inc. v. New Orleans, 99-60 (La.App. 5 Cir. 7/27/99), 739 So.2d 977 (citing National Tea Co. v. Plymouth Rubber Co., 95-254 (La.App. 5 Cir. 10/18/95), 663 So.2d 801).

The allocation of fault in accordance with La. C.C. art. 2823 is a question of fact within the purview of the jury. Therefore, we find the trial court erred as a matter of law by ruling on the issue of third-party fault and keeping the issue from the jury. Anderson v. May, 01-1031 (La.App. 5 Cir. 2/13/02), 812 So.2d 81. “Where one or more trial court legal errors interdict the fact finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record.” Campo v. Correa, 01-2707 (La.2002), 828 So.2d 502, 510.

In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985), the Supreme Court explained:

In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id., 469 So.2d at 974

|?,aThe undisputed facts are that Daphne sustained three broken cervical bones in a one-vehicle accident while riding in a truck driven by Jamie Adams. She was taken to TGMC after the accident. Plaintiffs acknowledged that a separate action against Mr. Adams, the manufacturer of the truck, and the Louisiana Department of Transportation has been filed in Terrebonne Parish. It is also clear from the record that TGMC was severed from this action and further proceedings are pending in that matter in a separate venue.

Plaintiff admitted at the beginning of trial that Daphne was injured in the accident and taken to TGMC for treatment. Plaintiff also made it clear to the jury that they were only to assess damages for the quadriplegia. Because of that restriction, plaintiff did not introduce evidence of negligence on the part of Mr. Adams.

Defendants did present medical testimony to make a causal link between the accident and the injury sustained. However, to find liability under the duty-risk a party must also prove that the defendant owed a duty of care to plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Clayton v. Illinois Central R. Co., 03-972 (La.App. 5 Cir. 1/27/04), 865 So.2d 896.

As to Mr. Adams, the driver of the vehicle in which Daphne was riding, we find insufficient evidence presented at this trial to impose liability and assess fault. While the record shows that no other vehicle was involved in the accident, no cause for the accident has been shown. There was testimony concerning the condition of the vehicle after the accident. However, there was no testimony by accident investigators or possible witnesses to show the circumstances of the accident. Such factors as speed, road conditions, and attentiveness and condition 123of the driver were not examined. Under these circumstances, we cannot find a breach of duty necessary to assess liability or apportion fault to Mr. Adams.

As to TGMC, the LPCF argues that the treatment of nurses at TGMC fell below the customary standard. There is testimony from plaintiffs’ witness, Dr. Gary Harris, in which he questions the documentation of the attending nurses. Specifically, Dr. Harris stated that he did not believe the concerns for Daphne were documented as aggressively as possible. He also stated that he felt the nurses were inexperienced and did not stand up to the doctors to see that Daphne got the necessary care to prevent her paralysis. However, there is no showing of the appropriate standard of care for attending nurses.

It is well established that a hospital can be held responsible for the negligence of its employees under the doctrine of respondeat superior. Under this theory, the same standard of care and burden of proof for the physician or nurse whose activities are questioned are appropriate. Estate of Wilburn v. Leggio, 36,534 (La. App. 2 Cir. 3/19/03), 842 So.2d 1175, writ denied, 03-1096 (La.6/6/03), 845 So.2d 1095. The burden of proof of medical malpractice as set forth in La. R.S. 9:2794 requires a showing that the medical treatment fell below the ordinary standard of care expected of physicians in that field of medical care, and a causal relationship between the injury and the alleged negligent treatment.

There is no showing of the ordinary standard of care, and except for the above mentioned testimony, no showing of negligence on the part of the attending nurses. Further, there is no showing of the ordinary procedure or the responsibility delineations between the attending physicians and the attending nurses. Accordingly, we find insufficient evidence presented at this trial to assess liability against TGMC.

In conclusion, we find that, while the factual finding of the trial court was correct that there is insufficient evidence presented at this trial to meet the burden | P4of proof for a finding of liability for Daphne’s damages against Mr. Adams or TGMC, we find that it was error to keep this finding of fact from the jury. Consequently, we find the error made by the trial court in this regard is harmless.

For the foregoing reasons, we amend the judgment of the trial court rendered on November 18, 2002 to exclude Dr. Stephen Mallernee and Dr. Bradley J. Bartholomew from that part of the judgment which taxed defendants for all court costs incurred in this matter and affirm the judgment as amended. In the judgment of the trial court of December 19, 2002 we reverse the portion of the judgment which casts Dr. Bradley J. Bartholomew and Dr. Stephen Mallernee in judgment for costs and hold that the Louisiana Patient’s Compensation Fund is solely responsible for payment of costs awarded in this judgment, and affirm the remainder of the judgment.

JUDGMENTS AMENDED AND AS AMENDED, AFFIRMED.

      . In connection with a supplemental brief on this issue, plaintiff has filed a motion to declare La. R.S. 40:1299.43 unconstitutional'. We refused that motion for lack of jurisdiction in a separate ruling.

      . Although the Hall case involved an admission of liability on the part of the defendant doctors, the rational used in Hall is applicable in the instant case as well.


author: CLARENCE E. McMANUS, Judge.

text:
    Scott E. STEBBINS v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    No. 03-CA-1366.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.
    Martin L. Broussard, Jr., Broussard and Associates, New Orleans, LA, for plaintiff-appellant.
    T. Gregory Schafer, Rachel S. Kellogg, Schafer & Schafer, New Orleans, LA, for defendant-appellee, United Services Automobile Association.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

The trial court granted summary judgment in favor of defendant United Services Automobile Association (“USAA”), dismissing all of plaintiffs claims against USAA. For the reasons which follow, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

On February 14, 2001, the plaintiff, Scott Stebbins (“Stebbins”), rented a moving van from Budget Rent-A-Car (“Budget”). The next day, Stebbins returned to obtain a larger van and a dolly. The Budget employee asked Stebbins to help her retrieve the dolly from a storage shed because she was working alone that day. While Stebbins was retrieving the dolly from the shed, he stepped onto an allegedly uneven surface and fractured his foot.

Stebbins filed a Petition for Damages against Budget arguing that there was a hazardous uneven elevation outside of the storage shed and Budget’s employee failed to warn him of the dangerous condition. Stebbins argued that the hazardous condition and the failure to warn resulted in his injuries and Budget was responsible for his damages. Thereafter, Budget filed for bankruptcy and Stebbins amended his petition to add USAA as a defendant. USAA provided uninsured motorist coverage to Stebbins at the time of the accident.

USAA filed a motion for summary judgment arguing that Stebbins’ injuries did not arise out of the use of an uninsured motor vehicle, therefore, the USAA policy did not provide coverage for the injuries claimed by Stebbins. A hearing was held on June 11, 2003 and the trial court granted USAA’s motion for summary judgment. Stebbins now appeals this judgment.

DISCUSSION

On appeal, Stebbins argues that his injuries did arise out of the ownership, maintenance or use of the uninsured rental van and, therefore, the USAA uninsured motorist policy applies and the trial court erred in granting summary judgment in favor of USAA.

The USAA policy contains the following section pertinent to uninsured motorist coverage:

We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured/underinsured motor vehicle because of [bodily injury]:
1. Sustained by a covered person;
and,
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured/underinsured motor vehicle.

Stebbins sustained the bodily injury and he was a covered person under the insurance policy. Further, his injuries were caused by an accident. Therefore, the only other question to be considered in determining whether or not his damages are covered by this uninsured motorist policy, is whether or not his injuries arose out of the use of the uninsured rental van.

This Court has recognized that one does not need to be actually operating or driving the vehicle in order to be using it. Terminix Services, Inc. v. State Farm Mutual Automobile Insurance Company, 01-CA-720, 803 So.2d 198, 202 (La.App. 5 Cir. 11/27/01). The Supreme Court, in Carter v. City Parish Government, Etc., 423 So.2d 1080 (La.1982), established a two part analysis to be used to determine if the “arising-out-of-use” provision of an uninsured motorist policy has been met. The following questions must be answered affirmatively in order for coverage to apply: (1) was the conduct of the uninsured of which the plaintiff complains a legal cause of the injury, and (2) was it a use of the automobile. Id.

In Hollingsworth v. United Services Automobile Association, 01-C-397, 806 So.2d 756 (La.App. 5 Cir. 12/26/01), this Court applied the analysis set forth in Carter. In Hollingsworth, the plaintiff was exiting the insured vehicle when an unidentified assailant attempted to hijack her vehicle. During the confrontation, the plaintiff was shot in the hand and the assailant fled the scene in a vehicle driven by another unidentified motorist. The plaintiffs vehicle belonged to her father and was insured with USAA. The policy included the same uninsured motorist coverage as Stebbins’ policy and the plaintiff sought coverage under that policy. This Court applied the Carter analysis and found no coverage under the policy because the injury did not arise out of the use of the uninsured vehicle.

In addition, this Court applied the Carter analysis in Terminix Services, Inc. v. State Farm Mutual Automobile Insurance Company, supra. In Terminix, the Terminix facility was destroyed by fire caused by sparks from a cutting torch used by Reichert Iron Works. The torch was powered by oxygen and acetylene tanks on the bed of a truck, owned by Reichert and insured by State Farm. Terminix filed suit and subsequently named State Farm as a defendant, arguing coverage under the automobile insurance policy because the damages arose out of use of the truck. This Court applied the two questions set forth in Carter and found no coverage under the automobile insurance policy. This Court held that in order for conduct to arise out of the use of the vehicle, the auto must be essential to the theory of liability and the specific duty breached must flow from the use of the automobile. This Court found that the duty breached by the Reichert employees did not arise out of the placement of the tanks in the bed of the truck and, therefore, it did not flow from the use of the truck.

Stebbins alleges he was injured because of a hazardous uneven elevation outside of Budget’s storage shed and the failure of Budget’s employee to warn him of the hazardous condition. He alleges that he should be afforded uninsured |smotorist coverage under his USAA policy because this injury occurred while he was using the uninsured van. Stebbins argues he was using the van at the time of the accident because he was retrieving equipment, the dolly, which belonged with the van and was to be intricately used along with the moving van.

We find that these alleged causes of Stebbins’ injuries do not arise out of the use of the uninsured Budget moving van. We find that the dolly rented by Stebbins was not a part of the moving van. The two pieces of equipment were separate. In addition, the alleged causes of Stebbins’ injuries relate to the condition of Budget’s property and the negligence of an employee. These causes do not relate to the use of the moving van. As this Court found in Terminix, in order for the conduct to arise out of the use of the vehicle, the vehicle must be essential to the theory of liability and the duty breached must flow from the use of the vehicle. The moving van is not essential to the theory that there was a hazardous uneven elevation outside of the storage shed. In addition, the allegation that the employee was negligent because she failed to warn Stebbins of this hazardous condition does not flow from the use of the moving van.

Therefore, we find that the conduct complained of by Stebbins does not arise out of the use of the uninsured moving van. Thus, the USAA uninsured motorist policy does not provide coverage to Stebbins for these injuries.

Accordingly, we find the trial court correctly granted summary judgment in favor of USAA and dismissed Stebbins’ claims against it.

AFFIRMED.


author: | JAMES L. CANNELLA, Judge.

text:
    Dora WILKERSON v. WAL-MART STORES, INC.
    No. 03-CA-1353.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Catherine Orwig Hunter, Metairie, LA, for Appellant.
    John B. Fox, Robert W. “Doc” Booksh, Jr., New Orleans, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   | JAMES L. CANNELLA, Judge.

The Defendant, Wal-Mart Stores, Inc., appeals from a summary judgment in a workers’ compensation dispute filed by the Plaintiff, Dora Wilkerson, for reinstatement of benefits, penalties and attorney’s fees. We affirm.

The Plaintiff injured her back and ankles in the course and scope of her employment on December 14, 1999. The injuries occurred when the bottom of a box of battery packages collapsed as the Plaintiff lifted it, spilling the packages and causing the Plaintiff to twist her body to avoid the falling batteries. The Defendant paid workers’ compensation benefits to the Plaintiff until March 28, 2002, when it suspended her benefits because she failed to undergo a myelogram which was recommended by her treating physician in late 1999 or early 2000. Thereafter, on August 28, 2002, the Plaintiff filed a Disputed Claim for Compensation for reinstatement of her benefits, penalties and attorney’s fees. On April 30, 2003, the Plaintiff filed a Motion for Summary Judgment, contending that the facts are undisputed and that the Defendant was not legally entitled to suspend her compensation benefits without judicial approval.

After a hearing on the motion for summary judgment, the workers’ compensation judge found in favor of the Plaintiff and rendered a judgment |3awarding a lump sum of indemnity benefits from the date on which the benefits were suspended, resumption of the benefits, penalties of $2,000, attorney’s fees of $2,500 and costs. On appeal, the Defendant contends that the trial judge erred in granting summary judgment.

La.C.C.P. art. 966 provides that a summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Under the 1997 amendment to the article, summary judgment is favored, but the burden of proof remains with the movant. Cortinas v. Highway Transport, Inc., 01-725, p. 8 (La. App. 5th Cir.1/15/02), 807 So.2d 940, 944.

In the Plaintiffs motion for summary judgment, she attached the Notice of Payment form indicating that the benefits were suspended due to “employee failing to cooperate,” and letters regarding this action between the attorneys for the parties. The Defendant attached the same documents, plus the written reasons for judgment and findings of fact from a prior hearing related to a claim for attorneys fees and penalties for the Defendant’s initial failure to authorize the tests that it now insists the Plaintiff must undergo. The following chronology of events was taken from the reasons for judgment and findings of facts following that hearing. The facts are undisputed.

The Plaintiff was treated for her back injury by Dr: Robert Mímeles, an orthopedic surgeon. An magnetic resonance imaging (MRI) test showed a broad-based bulge at L4-L5 and L3-L4, with impingement at L4-L5. Dr. Mímeles referred the Plaintiff to a neurosurgeon, Dr. William Johnston, for evaluation. He recommended diagnostic testing in the form of a myelogram and computerized Axial Tomography (CT) scan. The myelogram was scheduled for | ¿February 28, 2000. However, the Plaintiff failed to have the test at that time, explaining to the doctor on March 6, 2000 that she was feeling better. On May 26, 2000, Dr. Johnston again sought authorization from the Defendant for the two tests. On June 6, 2000, the Defendant requested medical documentation from the doctor supporting the request for the tests. Dr. Johnston did not respond. The Defendant then sought a second opinion from Dr. John Schuhmacher, a neurosurgeon, on July 3, 2000. The Plaintiff was seen on September 13, 2000. Dr. Schuhmacher found a ruptured disc. In his report, he recommended a repeat magnetic resonance imaging test.

On December 20, 2000, the Defendant petitioned the court for an independent medical examination (IME). Dr. John D. Jackson, a neurosurgeon, was appointed. He also found that the Plaintiff suffered a ruptured disc at L3-L4. In his report of February 16, 2001, Dr. Jackson recommended surgical removal of the ruptured disc. Five months later, on July 30, 2001, the Defendant authorized the surgery.

The Plaintiff cancelled or failed to appear for appointments with Dr. Johnston in September, October, and November. Consequently, the Defendant filed a Motion to Compel Examination. The Plaintiff was subsequently re-examined by Dr. Johnston on November 28, 2001 and February of 2002. Both times, he recommended that the Plaintiff undergo a mye-logram. The Plaintiff refused and the Defendant suspended her benefits.

The Defendant argues that the suspension did not require a court order. It asserts that the Notice of Benefits form contemplates a unilateral suspension of benefits because it is one of the actions listed. Further, quoting excerpts from Dr. Johnston’s deposition, it asserts that a my-elogram is not surgery and is necessary to determine the Plaintiffs diagnosis and course of treatment. The | F,Defendant argues that it cannot determine if the Plaintiff suffers from a disability which can be remedied by treatment because the diagnostic tests have not been conducted and Dr. Johnston discharged the Plaintiff after her refusal. The Defendant cites Blanchard v. Delta Marine Engineering, Inc., 252 So.2d 695, 696 (La.App. 1st Cir.1971), for the principal that “An employee cannot willfully and unreasonably, refuse to submit to treatment, or to a program of rehabilitation. His compensation benefits can be discontinued if he is suffering from a disability which can be remedied by treatment in which he refuses.” It also cites Miles v. F.D. Shay Contractor, Inc., 93-64 (La.App.3rd 11/3/93), 626 So.2d 74.

UNILATERAL SUSPENSION OF BENEFITS

We agree with the Plaintiff that the narrow issue before us in this case is whether the Defendant can unilaterally suspend benefits for failing to undergo the myelogram. Since that is a legal issue, the Plaintiff properly filed a motion for summary judgment to resolve it. Neither the justification of the suspension, nor the reasonableness of the Plaintiffs refusal will be addressed here.

La. R.S. 23:1124 provides:

A. If the employee refuses to submit himself to a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123 ..., his right to compensation ... shall be suspended until the examination takes place. The employee shall receive at least fourteen days written notice pri- or to the examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.
IrB- An employer or insurer who seeks to compel an employee’s compliance with a medical examination shall be granted an expedited hearing. The workers’ compensation judge shall set a hearing date for the matter within three days of receiving the employer’s or insurer’s motion. The hearing shall be held not less than ten nor more than thirty days after the employee, or his attorney, receives notice, delivered by certified or registered mail, of the employer’s or insurer’s motion ... The hearing shall be conducted as a rule to show cause. Unless the employee can show good cause for his refusal or obstruction of the medical examination, the workers’ compensation judge shall suspend the employee’s compensation and prosecution rights according to Subsection A of this Section.

Reading both provisions together, we conclude that the statute contemplates a contradictory hearing and a judicial determination of unreasonableness prior to the suspension of an employee’s benefits for refusing to be examined.

In addition, the Defendant does not dispute that the myelogram is an invasive procedure. All invasive procedures have inherent dangers. Thus, the Plaintiffs refusal to undergo this test is similar to those cases in which the claimant refuses to undergo surgical procedures. Those cases hold that an employer cannot unilaterally discontinue benefits for failure to undergo surgery. A hearing must be held and the workers’ compensation court must make a judicial determination as to the reasonableness of the employee’s refusal. See: Bass v. Service Trucking Company, Inc., 289 So.2d 78, 81 (La.1974); Green v. Liberty Mut. Ins. Co., 184 So.2d 801 (La. App. 3rd Cir.1966); Smith v. Northwestern Nat. Ins. Co., 432 So.2d 1102 (La.App. 3rd Cir.1983); Seaberry v. T.G. & Y. Stores Co., 467 So.2d 12 (La.App. 1st Cir. 1985), unit denied 470 So.2d 121; Collins v. General Motors Corp., 605 So.2d 219 (La.App. 2nd Cir.1992); Guillory v. City of Crowley, 93-1060, (La.App. 3rd Cir.8/31/94), 643 So.2d 196; City of Jennings v. Clay, 98-225 (La.App. 3rd Cir.10/14/98), 719 So.2d 1164. Thus, we find that the 17Pefendant was arbitrary and capricious in suspending the Plaintiffs benefits unilaterally.

We also note that neither case cited by the Defendant, Miles and Blanchard, are either dispositive or persuasive to this issue. In Miles, the court was not presented with the question of whether the employer is entitled to unilaterally terminate benefits for failing to have diagnostic tests without a hearing. Thus, it is distinguishable. In Blanchard, the quote cited by the Defendant is correct. However, the court also stated that, “The burden is upon the employer to prove the defense that the employee’s willful failure to cooperate with medical treatment, or his willful misconduct, is the cause of the continued disability, and the proof to sustain this defense must be clear, convincing, and conclusive.” Blanchard, 252 So.2d at 697. Those are factual questions yet to be determined by the workers’ compensation judge.

Thus, we find that the workers’ compensation judge correctly granted the summary judgment, and did not err in awarding penalties and attorney’s fees against the Defendant for unilaterally suspending the Plaintiffs benefits.

Accordingly, the judgment of the workers’ compensation court is hereby affirmed. The Defendant is to pay costs of this appeal.

AFFIRMED.

      . We note that, even if the reasonableness of the Plaintiff’s refusal were before us, neither party presented any evidence of the purpose of the myelogram. Although both parties quote Dr. Johnston's deposition in which he states that the test will help determine if surgery is necessary, the deposition excerpt is not part of the record. It was not attached to the motion for summary judgment or to the opposition, nor was it introduced in the hearing. "Even though evidence which might be inadmissible in a normal civil proceeding may be considered "competent evidence” in a workers' compensation proceeding, such evidence must still be properly "presented” or admitted in order to be considered and to form part of the record.” Wynder v. Royal Ford Lincoln Mercury, Inc., 98-616, pp. 7-8 (La.App. 3rd Cir.10/28/98), 721 So.2d 1001, 1005; Mitchell v. Terrebonne Parish School Bd., 02-1021, p. 5-7, (La.App. 1st Cir.4/2/03), 843 So.2d 531, 534.

      . Only one out of the three examining physicians recommends it. Dr. Jackson and Dr. Schuhmacher have found that the Plaintiff has a ruptured disc and Dr. Jackson has recommended surgery.