author: liKOSTELKA, Judge Pro Tempore.

text:
    Arthur L. JONES, Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Applicant.
    No. 37,426-CW.
    Court of Appeal of Louisiana, Second Circuit.
    July 8, 2003.

      Zelda W. Tucker, Shreveport, for Applicant.
    Klotz, Simmons & Brainard, by Eron J. Brainard, Shreveport, for Respondent.
    Before WILLIAMS, GASKINS and KOSTELKA (Pro Tempore), JJ.
   liKOSTELKA, Judge Pro Tempore.

State Farm Mutual Automobile Insurance Company (“State Farm”) seeks review of a judgment of the Eleventh Judicial District Court, Parish of DeSoto, which denied State Farm’s motion for summary judgment on an issue involving uninsured motorist insurance (“UM”). A writ of certiorari was granted to afford review of the entire record. The judgment denying State Farm’s motion for summary judgment is reversed, and all claims of Arthur Jones (“Jones”) against State Farm are dismissed.

Facts

In July 2000, Jones was driving a vehicle owned by Jerry Allen (“Allen”) and insured by State Farm (the “policy”). Jones was driving Allen’s vehicle on Interstate Highway 49 and hit a piece of tire tread in the roadway which caused him to lose control of the vehicle. As a result of the accident, Jones sustained injuries that required hospitalization.

• Jones sued State Farm as Allen’s UM carrier. State Farm denied coverage and subsequently filed its motion for summary judgment, citing the provisions of the policy addressing UM coverage. State Farm’s motion was denied by the trial court, which judgment we now have for review.

Discussion

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App.2d Cir.03/31/99), 731 So.2d 482. The motion should be granted only if the pleadings, depositions, answers to | ginterrogatories and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.01/21/98), 707 So.2d 459.

The burden of proof remains with the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then that party need not negate all essential elements of the adverse party’s claim, action, or defense but may simply point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. See La. C.C.P. art. 966(C)(2). When a motion is made and supported, as required by Article 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.05/10/00), 760 So.2d 587.

State Farm argues that the trial court erred and summary judgment is proper in this case because Jones failed to present evidence showing that the | .¡vehicle which caused his injury was an “uninsured motor vehicle” as defined by the policy, nor did he provide sufficient evidence to meet his burden of proof that UM coverage applied to such an accident. We agree.

State Farm claims that the pertinent language concerning UM coverage in the policy is as follows:

We will pay nonpunative [sic] damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

The policy also defines an uninsured motor vehicle as follows:

2. A “hit and run” land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured; or
b. the vehicle the insured is occupying and causes bodily injury to the insured.
3. An automobile:
a. the driver of which remains unknown
b. that causes bodily injury to the insured; and
c. that strikes neither the insured nor the vehicle the insured is occupying.

The insured must prove, by an independent and disinterested witness, that the actions of such unknown driver were the cause of the bodily injury.

Additionally, as to UM coverage, La. R.S. 22:1406(D)(l)(f) states as follows:

Uninsured motorist coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of\/proviny, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identify is unknown or who is uninsured or un-derinsured. (Emphasis added).

The facts herein do not fall under the requirements of the policy, the statute, or the jurisprudence for UM coverage to be applicable. A claimant has the original burden of proving, “(1) a physical contact which occurs as a result of (2) an unbroken chain of events between two vehicles, providing that debris falling from a vehicle and hitting the other satisfies this physical contact requirement.” Rener v. State Farm Mut. Auto. Ins. Co., 1999-1703 (La.App. 3d Cir.04/05/2000), 759 So.2d 214, 215. Additionally, pursuant to the statute, such proof must be by an “independent or disinterested” witness.

Although the accident allegedly was caused by a piece of tire tread, which seemingly would have come from some other vehicle, the driver of which is unknown, Jones has offered no evidence, either from himself or from an independent or disinterested witness, to prove that the actions of an unknown driver were the cause of his bodily injury, nor has he proved, as required, the unbroken chain of events that led to his injuries. Jones himself did not see the tire tread come off of another vehicle, nor does he know how the object got on the roadway. Jones does claim to have “disinterested” witnesses who saw the accident occur, as well as the state trooper who completed the accident report and reportedly saw the tire tread; however, Jones has not provided evidence from any “independent and disinterested | ^witness” which links the injury to contact with a vehicle or a driver who is unknown or uninsured.

Although Jones relies on Pinkney v. Progressive Specialty Ins. Co., 597 So.2d 1168 (La.App. 1st Cir.1992) in support of his position, the facts of Pinkney are easily distinguished from the facts at hand.- In Pinkney, a motorcycle driver suffered injuries after swerving his motorcycle to avoid a log that apparently had fallen from a preceding unknown vehicle. However, in that case a disinterested witness indicated that he remembered seeing a truck several hundred yards ahead of the motorcycle driver, and that the truck was a “stake body type” that was carrying something the witness could see “was piled above the body.” The witness also testified that traffic seemed to be flowing without any problems ahead of the truck prior to the accident. Under these facts, even though there was no physical contact between the insured and the unknown vehicle, and even though no witness was able to testify that he actually saw the log fall from the truck, the Pinkney court concluded that the testimony about the circumstances of the accident supported a determination that, more probably than not, the log fell from the preceding vehicle. See also Rener, supra (summary judgment on behalf of insurer denied where a disinterested witness saw an eighteen-wheeler truck drop metal debris, which the injured party subsequently hit, resulting in his damage); but see Guidry v. Cigna Ins. Co., 2000 WL 726881 (E.D.La., June 2, 2000) (summary judgment was granted for insurer by federal district court (applying Louisiana law) where there was no | (¡independent witness to the incident or to connect the road debris to another vehicle).

Jones, having offered no witnesses to connect the tire tread to another vehicle, clearly cannot meet his burden of proof required under La. R.S. 22:1406 D(1)(F) or the policy language. Such evidence is the essential element of his claim against State Farm, and without it, State Farm’s motion for summary judgment necessarily should be granted.

Conclusion

Therefore, for the foregoing reasons, the trial court’s judgment denying State Farm’s motion for summary judgment is reversed, all claims of Arthur Jones against State Farm are dismissed with prejudice, and all costs of the appeal are assessed to Jones.

REVERSED.

      . State Farm refers to page 12 of the policy for the stated language; however, although a copy of the remainder of the policy was made part of the record, that specific page (along with page 13) has been omitted from its brief, presumably inadvertently. Jones does not dispute the policy language provided by State Farm, so we will accept it as offered.


source: Caselaw Access Project

author: I .BROWN, C.J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Douglas PALMER, Appellant.
    No. 37,355-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 8, 2003.
    Edward K. Bauman, Lake Charles, Paula Corley Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Don M. Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.

      Before BROWN, CARAWAY, and KOSTELKA (Pro Tempore), JJ.
   I .BROWN, C.J.,

Defendant, Douglas R. Palmer, age 24, forcibly entered a residence in Mansfield and raped a 14-year-old girl. The victim said she was too frightened to scream or to resist. The victim’s brother caught defendant in the act. A medical exam confirmed that sexual activity had occurred. Defendant was originally charged by bill of information with aggravated burglary and forcible rape. Pursuant to a plea agreement, the rape was reduced to felony carnal knowledge of a juvenile, a violation of La. R.S. 14:80, and the burglary was dismissed. Defendant pled guilty to the reduced charge and was sentenced to serve five years at hard labor of which two years were suspended. The trial court denied his timely motion to reconsider his sentence. Defendant now appeals his sentence as excessive. For the following reasons, we affirm.

Discussion

On this record, we do not find constitutional error. Defendant, who has a twelfth-grade education and a wife, had no excuse or justification for his criminal behavior. He unlawfully entered a residence, forced a 14-year-old girl onto a table, pulled down her pants, and proceeded to fondle and rape her. The offense of conviction does not adequately describe his conduct. The evidence, viewed in the light most favorable to the prosecution, would support a conviction for forcible rape, a violation of La. R.S. 14:42.1, which carries a sentencing exposure of up to 40 years at hard labor. It would also support a eon-viction for aggravated burglary, a violation of La. R.S. 14:60, which carries a sentencing exposure of up to 30 years at hard labor. The offense of conviction, felony carnal knowledge of a | ¡juvenile, carries a sentencing exposure of not more than ten years at hard labor and an optional fine. The sentence imposed is mid-range. It is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which, under the facts and circumstances of this case, is not excessive.

Conclusion

For the foregoing reasons, defendant’s conviction and sentence are AFFIRMED.

      . We note that defendant is a sexual offender as defined in La. R.S. 15:536, and the victim was a minor. Therefore, the provisions of La. R.S. 15:537 (denial of good time) and La. R.S. 15:538 (ineligibility for probation, parole or suspension of sentence unless certain conditions are imposed) are self-executing. See State v. Fuller, 37,127 (La.App.2d Cir.06/25/03), 850 So.2d 909, 2003 WL 21459246; State v. Moseley, 36,550 (La.App.2d Cir. 10/23/02), 830 So.2d 354 (Brown, L, concurring).


author: I,STEWART, J.

text:
    Daisy ROBERSON, et al., Plaintiffs-Appellees, v. ARCADIA HEALTHCARE CENTER, INC., Defendant-Appellant.
    No. 37,761-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 9, 2003.

      Walter F. Clawson, Shreveport, for In-tervenors Appellants, La. Patients Compensation Fund Oversight Board and La. Patients Compensation Fund.
    Cook, Yancey, King & Galloway, by Bernard S. Johnson, Shreveport, for Plaintiffs Appellees, Daisy Roberson, Lily Davis, Thelma Bobb, Bobby R. Roberson, Minnie Calahan and Irma Davis.
    Georgia P. Kosmitis, Shreveport, Bolen, Parker & Brenner, by James A. Bolen, Jr., Gregory Engelsman, Alexandria, for Defendants Appellees Arcadia Healthcare Center, Inc. and Troy Unbehagan.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   I,STEWART, J.

The Louisiana Patient’s Compensation Fund and the Louisiana Patient’s Compensation Fund Oversight Board (referred to collectively herein as the “PCF”) appeal from a judgment overruling their objections to a settlement proposed in accordance with La. R.S. 40:1299.44(C). The PCF objected to the proposed settlement because neither an insurer nor a self-insured healthcare provider were parties to the settlement as required by the statute. The PCF also objected on the basis that the plaintiffs failed to produce facts sufficient to establish the healthcare provider’s status as a qualified healthcare provider. The plaintiffs have filed a motion to dismiss this appeal.

For the reasons to be set forth and in light of the recent Louisiana Supreme Court decision in Ginn v. Woman’s Hospital Foundation, Inc., 2002-1913 (La.4/9/03), 842 So.2d 338, we reverse the trial court’s judgment and remand for further proceedings.

FACTS

This action for damages stems from the death of Clayton Roberson, a former resident of Arcadia Healthcare Center (Arcadia), a nursing home in Bienville Parish. While a resident at Arcadia, Mr. Roberson sustained a head injury in a slip and fall incident on September 26, 1999. He subsequently died on December 22, 1999. Daisy Roberson, Lily Davis, Thelma Bobb, Bobby Ray Roberson, Minnie Calahan, and Irma Davis, the widow and children of Mr. Roberson, filed suit against Arcadia and later added Arcadia’s administrator, Troy Umbehagen, as a defendant. The principal complaint of the suit is the failure of Arcadia to provide proper care and treatment for Mr. Roberson. During the course of litigation, | {.Arcadia’s insurer was placed in liquidation. The insurer is.no longer a participant in this matter.

On October 29, 2002, the plaintiffs filed a “Notice of Settlement and Petition for Recovery Against the Louisiana Patient’s Compensation Fund.” This filing stated that the plaintiffs reached a settlement with Arcadia and Umbehagen whereby Arr cadia agreed to pay the sum of $100,000 in settlement of the plaintiffs’ claims. Furthermore, the plaintiffs reserved the right to proceed against the PCF for damages over $100,000 with the payment of $100,000 by Arcadia to be considered an admission of liability in accordance with La. R.S. 40:1299.44(0(5).

In response to the petition for judicial approval of the settlement, the PCF intervened and filed objections to the proposed settlement. The PCF asserted that intervention was necessary to protect its interest inasmuch as judicial approval of the settlement would result in an admission of liability. The PCF objected to the pro.posed settlement on two grounds. First, the PCF alleged that the plaintiffs had failed to set forth sufficient facts to support the conclusion that either Arcadia or Umbehagen were qualified health care providers under the Medical Malpractice Act (MMA), La. R.S. 40:1299.41, et seq. Second, the PCF alleged that the settlement provisions of La. R.S. 40:1299.44(0 do not apply when it is the health care provider, rather than the insurer or a self-insured health care provider, who agrees to settle and pays the settlement amount.

In response to the PCF’s intervention and objections, the plaintiffs filed a motion for a partial summary judgment seeking dismissal of the PCF’s objections. Plaintiffs supported their motion with a statement 13purporting to set forth the uncontested material facts. This statement included the facts that'the plaintiffs had filed a complaint with PCF concerning Arcadia’s negligence; that the PCF acknowledged in writing on May 15, 2000, that Arcadia was a qualified health care provider and was insured for occurrences for the period of March 5, 1999 to March 5, 2000; and that the POP issued a certificate of enrollment on June 18, 2000, certifying Arcadia’s qualification and payment of applicable surcharges. Arcadia also responded to the PCF’s objections. Arcadia maintained that it was and continues to be a qualified health care provider entitled to the protections of the MMA. The PCF opposed the plaintiffs’ motion for partial summary judgment.

On January 9, 2003, the trial court conducted a hearing on the PCF’s objections to the proposed settlement and the plaintiffs’ motion for partial summary judgment. The judge verbally granted the motion for partial summary judgment. The judge construed the ruling as one approving the settlement and overruling the objections of the PCF. It appears from the record that the PCF filed a notice of intent to seek supervisory review of the ruling but that it did not follow through. Instead, the PCF filed an opposition to the form of the proposed judgment and also filed an exception of no cause of action on the grounds that the pleadings did not clearly allege medical malpractice.

On March 3, 2003, the trial court conducted a hearing on the PCF’s opposition to the proposed judgment and exception of no cause of action. The judge denied the exception of no cause of action upon determining that the plaintiffs’ claims alleged medical malpractice and that Arcadia was 1 ¿shown to be a qualified health care provider. The trial judge again rejected the PCF’s argument that settlement and payment by Arcadia removed this matter from the provisions of La. R.S. 40:1299.44(C). A judgment approving the settlement and granting the motion for partial summary judgment thereby overruling the PCF’s objections to the settlement was signed that same day. The judgment assessed costs against the PCF and set the matter for jury trial on an expedited basis due to the age of Daisy Roberson.

Thereafter, the PCF filed a motion to amend the judgment to reflect its finality insofar as it granted the plaintiffs’ motion for partial summary judgment. On March 24, 2003, the trial court granted the PCF’s motion and certified the judgment of March 3, 2003 as a final judgment suitable for immediate appeal in accordance with La. C.C.P. art. 1915(B). The PCF then filed the instant appeal.

The plaintiffs responded with a motion to dismiss the appeal. Also, the plaintiffs and the PCF filed a joint motion to expedite disposition due to the jury trial being scheduled for July 21, 2003. By an order issued June 12, 2003, this court granted the motion to expedite the appeal and referred the motion to dismiss to the merits. Having set forth the pertinent factual and procedural history, we now turn to the issues presented for disposition, namely the motion to dismiss the appeal, the qualified health care provider status of Arcadia, and the validity of the settlement under La. R.S. 40:1299.44(C).

DISCUSSION

Motion to Dismiss Appeal

| sThe plaintiffs assert that this appeal should be dismissed pursuant to the clear mandate of La. R.S. 40:1299.44(0(6) which provides, “Any settlement approved by the court shall not be appealed.” The PCF counters that La. R.S. 40:1299.44(0(6) does not prohibit appeal of the trial court’s judgment granting the partial motion for summary judgment, and the PCF cites Bennett v. Krupkin, 2001-0209 (La.10/16/01), 798 So.2d 940 as support for its right to appeal. Alternatively, the PCF argues that review is appropriate under this court’s supervisory jurisdiction.

In Bennett v. Krupkin, the supreme court held that the Louisiana Patient’s Compensation Fund Oversight Board (the “Board”) had standing to appeal a trial court judgment granting a doctor’s exception of prematurity, where the Board asserted that the doctor was not a qualified health care provider under the MMA. When Dr. Krupkin filed an exception of prematurity in response to a suit for damages, the Board intervened to challenge Dr. Krupkin’s claim that he was a qualified health care' provider. In approving the Board’s intervention and appeal from the adverse judgment sustaining Dr. Krup-kin’s exception of prematurity, the supreme court noted the contested issue of Dr. Krupkin’s status as a qualified health care provider involved the threshold question of whether the case properly falls under the MMA. The court found that the Board has the responsibility and authority to manage and defend the PCF as set forth in La. R.S. 40:1299.44(A)(5)(b), La. R.S. 40:1299.44(D)(2)(a), and La. R.S. 40:1299(D)(2)(b)(x), the latter of which specifies the Board’s authority to defend the PCF from claims due to the negligence of non-covered health care providers. The court interpreted this as including the authority to oppose “an exception of prematurity filed |fiby a doctor on the grounds that the doctor is a ‘non-covered health care provider.’ ”

The supreme court also approved the Board’s appeal based on the procedural articles pertaining to intervenors and their right to appeal. The court explained:

Article 1091 provides that “a third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by: ... (3) Opposing both plaintiff and defendant.” La. C.C.P. art. 1091. Article 2086 provides that “[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” La. C.C.P. art.2086. As a party who could have, and did, intervene in the trial court, the Board has a right to appeal under La. C.C.P. art.2086. Finally, Article 2083 provides in part that “[a]n appeal may be taken from a final judgment rendered in causes in which appeals are given by law....” La. C.C.P. art.2083. The judgment granting Dr. Krupkin’s exception of prematurity was a “final judgment.”

Bennett v. Krupkin, 798 So.2d at 944.

The First Circuit in Ginn v. Woman’s Hospital Foundation, Inc., 2001-1194 (La. App. 1st Cir.5/10/02), 818 So.2d 983, reversed on other grounds by 2002-1913 (La.4/9/03), 842 So.2d 338, relied on the holding and reasoning of Bennett v. Krupkin, supra, to deny a motion to dismiss an appeal under circumstances analogous to those in the instant matter. Moreover, the First Circuit interpreted the settlement provisions of La. R.S. 40:1299.44(0 as presupposing “the absence of a dispute as to the status of the health care providers involved as qualified health care providers under the Act.” Ginn, 818 So.2d at 989. We agree. In reversing the First Circuit’s opinion, the supreme court expressed no opinion regarding the propriety of the appeal as that issue was not raised by either party. Ginn, 842 So.2d at 342.

|7In the instant matter, the PCF intervened to object to a proposed settlement under La. R.S. 40:1299.44(0 between the plaintiffs and Arcadia. The PCF’s objection raised the issue of whether Arcadia was a qualified health care provider for purposes of the MMA. Moreover, the PCF’s objection questioned whether the settlement between Arcadia and the plaintiffs could fall under the provisions of La. R.S. 40:1299.44(0 since it was not a settlement between either the insurer or a self-insured health care provider and the claimants/plaintiffs. While La. R.S. 40:1299.44(0(6) does provide that any settlement approved by the court shall not be appealed, we believe this presupposes that the approved settlement meets the criteria set forth in La. R.S. 40:1299.44(C). The objections of the PCF directly address whether or not the proposed settlement meets these criteria.

We are mindful of jurisprudence holding that the PCF is not a party defendant and cannot contest liability when the health care provider enters a binding settlement for $100,000. See Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So.2d 879; Stuka v. Fleming, 561 So.2d 1371 (La.1990), cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990); Ceasar v. Barry, 99-0173 (La.App. 3d Cir. 11/2/00), 772 So.2d 331, writ denied, 2000-3291 (La.2/2/01), 784 So.2d 8; McGrath v. Excel Home Care, Inc., 01-1270 (La.App. 5th Cir. 3/26/02), 810 So.2d 1283, writ denied, 2002-1344 (La.11/27/02), 831 So.2d 284; and Schwarzenburg v. Jackson, 600 So.2d 163 (La.App. 5th Cir.1992). However, we do not view this matter as involving an objection to the settlement of liability between Arcadia and the plaintiffs; rather, it is an objection to settlement under the strict provisions of |sLa. R.S. 40:1299.44(0 under circumstances where it appears that the proposed settlement does not meet the statutory requirements.

Considering the right of appeal afforded an intervening party under the Code of Civil Procedure, the statutory duty of the PCF Oversight Board to defend the PCF, and the fact that the PCF’s appeal is from the summary judgment which overruled its objections concerning the applicability of the La. R.S. 40:1299.44(0 to the settlement between the plaintiffs and Arcadia, we find the appeal by PCF to be proper. The motion to dismiss the appeal is hereby denied.

Qualified Health Care Provider

The PCF argues that the trial court erred in granting the plaintiffs’ motion for summary judgment because there are genuine issues of material fact concerning Arcadia’s status as a qualified health care provider. Although the PCF admits that at the time of the alleged malpractice, Arcadia was considered enrolled in the PCF, the PCF now argues that there is an issue of fact as to whether Arcadia provided proof of financial responsibility as required by La. R.S. 40:1299.42(A)(1) to be qualified under the MMA. In particular, the PCF contends that there must be some showing that Arcadia’s insurer or the policy of insurance for the relevant time periods was in compliance with La. R.S. 40:1299.42 and the rules regarding insurance ratings promulgated by the PCF’s Oversight Board in the Louisiana Administrative Code.

19The purpose of the MMA is to limit the liability of health care providers who qualify by maintaining specified malpractice insurance and by paying a surcharge to the PCF. A qualified health care provider is liable for malpractice only to the extent provided in the MMA, namely a qualified health care provider has no liability for any amount in excess of $100,000 plus interest. La. R.S. 40:1299.42(B)(2); La. R.S. 1299.45(A); Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992).

To obtain the benefit of limitation of liability, a health care provider must become qualified by fulfilling the requirements of La. R.S. 40:1299.42(A), which provides as follows:

A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
(3) For self-insureds, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.

La. R.S. 40:1299.42(A). The requirement of proof of financial responsibility is further explained in La. R.S. 40:1299.42(E)(1) as follows:

E. (1) Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, or in the event the health care provider is self-insured, proof of financial responsibility by depositing with the board one hundred twenty-five thousand dollars in money.

La. R.S. 40.1299.42(A).

ImThese same requirements are reiterated in LAC 37:111.501, et seq., which governs the qualifications, conditions, and procedures required for PCF enrollment. The basic qualifications for enrollment are set forth in LAC 37:111.503, which requires a health care provider as defined by the MMA to demonstrate and maintain financial responsibility, to make an application for enrollment, and to pay the applicable surcharges. Of particular relevance is LAC 37:111.515 which provides as follows:

A. Upon receipt and approval of a completed application (including evidence of financial responsibility pursuant to § 505, § 507, or § 509), and payment of the applicable surcharge by or on behalf of the applicant health care provider, the executive director shall issue and deliver to the health care provider a certificate of enrollment with the fund, identifying the qualified health care provider and specifying the effective date and term of such enrollment and the scope of the fund’s coverage for that health care provider.
B. Duplicate or additional certificates of enrollment shall be made available by the executive director to and upon the request of an enrolled health care provider or his or its attorney, or professional liability insurance underwriter when such certification is required to evidence enrollment with the fund in connection with an actual or proposed malpractice claim against the health care provider.

These provisions demonstrate that a health care provider becomes enrolled in the PCF, and thus qualified, upon approval of an application, demonstration of financial responsibility to the satisfaction of the PCF, and payment of the applicable surcharge to the PCF. Upon satisfaction of these three basic requirements, a certifí-cate of enrollment is issued, and this certificate establishes the health care provider to be a qualified health care provider under the MMA.

In At the hearing on the motion for summary judgment and objections to the proposed settlement on January 9, 2008, the plaintiffs filed into evidence a letter dated May 15, 2000, from Cheryl Jackson, Medical Malpractice Insurance Director of the PCF regarding the plaintiffs’ malpractice complaint against Arcadia. This letter indicates that Arcadia was enrolled in the PCF on the dates of March 5, 1999, through March 5, 2000, and that it was insured by Reliance Insurance Company. Plaintiffs also introduced a certified copy of Arcadia’s certificate of enrollment showing that Arcadia was certified as an “En-rollee under La. R.S. 40:1299.41, et seq.,” for the effective dates of March 5, 1999 through March 5, 2000 and March 5, 2000 through March 5, 2001. The certified copy of the certificate of enrollment signed by the Malpractice Insurance Director who issued the certificate is presumed to be genuine and full proof of its contents. La. R.S. 13:3712; Goins v. Texas State Optical, Inc., 463 So.2d 743 (La.App. 4th Cir. 1985). The certificate demonstrates that Arcadia fulfilled the requirements to become a qualified health care provider.

We find no merit in the PCF’s argument that there is a genuine issue of fact as to Arcadia’s status as a qualified health care provider. The certified copy of the certificate of enrollment offered in support of the plaintiffs’ motion for partial summary judgment is sufficient to demonstrate Arcadia’s status as a qualified health care provider. When a motion for summary judgment is made and properly supported, the adverse party cannot rest on the mere allegations or denials of his pleading, but he must respond with specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967. The PCF’s bare assertion that the plaintiffs failed to prove that | ^Arcadia’s insurance policy met the requirements for proof of financial responsibility, particularly in light of the fact that a certificate of enrollment was issued to Arcadia and that certificates are not issued until proof of financial responsibility is provided by the enrollee, does not create a genuine issue for trial. Accordingly, summary judgment overruling the PCF’s objection to the proposed settlement based on Arcadia’s status as a qualified health care provider was properly granted.

Settlement Under La. R.S. 10:1299.11(0)

The PCF asserts that Ginn v. Woman’s Hospital Foundation, Inc., 2002-1913 (La.4/9/03), 842 So.2d 338, an opinion rendered shortly after the trial court overruled the PCF’s objections and approved the settlement, mandates reversal of the trial court’s judgment. Considering the supreme court’s strict analysis of La. R.S. 40:1299.44(0 in Ginn, supra, we are constrained to agree with the PCF’s assertion.

|13At issue in Ginn, supra, was whether La. R.S. 40:1299.44(0) applies when the health care provider, and not its insurer, agrees to settle its liability with the plaintiff, pays $100,000 and the plaintiff demands excess damages from the PCF. The plaintiff had asserted claims dealing with transfusions of contaminated blood which caused her to contract hepatitis C. Some of the claims were covered by the MMA and some were not. The plaintiff and the hospital agreed to a settlement and petitioned the court for approval. Under the proposed settlement, the hospital would pay the plaintiff $100,000 and |14be fully released from liability. Plaintiff would seek additional damages from the PCF. The PCF intervened to oppose the settlement on the grounds that the hospital was not a qualified health care provider and that the plaintiffs claim was not covered by the MMA. After a hearing, the trial court approved the settlement between the plaintiff and the hospital. Pursuant to the judgment, liability for damages was deemed established and admitted, and the plaintiff was granted the right to seek additional damages from the PCF. The judgment was affirmed on appeal, then the supreme court granted writs to consider whether the requirements of La. R.S. 40:1299.44(0) were satisfied.

In determining that the requirements of La. R.S. 40:1299.44(0) were not satisfied, the court closely examined the statutory language and concluded as follows:

The ■ language of La. R.S. 40:1299.44(0) clearly states that the procedures outlined in its provisions apply when the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability with the claimant and the claimant is demanding an amount in excess of the settlement from the Fund for a complete and final release. Moreover, subsection 1299.44(C) consistently and solely indicates the participants in the court approval of the settlement provided for under its provisions are to be the insurer of the health care provider or the self-insured health care provider, the claimant, and the board. La. R.S. 40:1299.44(0(5) clearly contemplates the involvement of the insurer, rather than the health care provider, in the hearing for court approval of the settlement as it provides only that the board, the claimant, and the insurer of the health care provider (or the self-insured health care provider) may introduce relevant evidence before the court. Finally, section 1299.44(C)(5) explicitly provides that the liability of the health care provider shall be considered as admitted and established where the insurer has paid its policy limits of $100,000. After considering these provisions, we find the plain language of La. R.S. 40:1299.44(0 is clear, unambiguous, and does not lead to absurd consequences. Consequently, we conclude La. R.S. 40:1299.44(0 applies only when the insurer of the health care provider or the self-insured health care provider agrees to settle its liability on the claim against its |1Kinsured and claimant demands excess damages from the Fund.

Ginn, 842 So.2d at 344.

Considering the supreme court’s analysis of the plain and unambiguous statutory language and its conclusion that La. R.S. 40:1299.44(0 requires either the insurer of a health care provider or a self-insured health care provider as participants in the settlement, we must conclude that the trial court erred in approving the settlement in the instant matter which was a settlement between the health care provider (Arcadia) and the plaintiff. It is undisputed that Arcadia is not a self-insured health care provider. As such, Arcadia’s insurer would have been the proper participant for purposes of a settlement under the provisions of La. R.S. 40:1299.44(0. Nothing in La. R.S. 40:1299.44(0 authorizes a settlement between a health care provider and a claimant.

The plaintiffs and Arcadia both refer to the fact that Arcadia’s insurer went into liquidation during the course of litigation and that it is no longer a participant. They assert that it is now impossible for a settlement to occur and that a strict application of Ginn, supra, would force parties to litigate rather than settle. They also attempt to factually distinguish Ginn, supra, from the present matter.

While there are factual distinctions between the instant case and Ginn, supra, such distinctions do not override the supreme court’s analysis of La. R.S. 40:1299.44(0). The supreme court’s interpretation of the statute was based on a strict interpretation of the statutory language and was not influenced by underlying factual considerations. The supreme court did discuss as an initial matter the fact that the lower courts erred in including in l1(ithe settlement claims not governed by the MMA. However, the court then went on to base its decision on its interpretation of La. R.S. 40:1299.44(0). The interpretation set forth in Ginn, supra, is controlling in this matter and requires reversal of the trial court’s judgment granting the plaintiffs’ motion for partial summary judgment, overruling the PCF’s objection to participation in the settlement by the health care provider, and approving the settlement.

The PCF asserts that in the absence of strict compliance with La. R.S. 40:1299.44(0), there are no other provisions under the MMA under which it can be made to pay excess damages when the health care provider settles with the plaintiff. The plaintiffs and Arcadia fear that they may be forced to litigate rather than settle. With these assertions in mind, we refer the parties to La. R.S. 40:1299.42(D)(5) which provides as follows:

(5) In the event that a partial settlement is executed between the defendant and/or his insurer with a plaintiff for the sum of one hundred thousand dollars or less, written notice of such settlement shall be sent to the board. Such settlement shall not bar the continuation of the action against the patient’s compensation fund for excess sums in which event the court shall reduce any judgment to the plaintiff in the amount of malpractice liability insurance in force as provided for in R.S. 40:1299.42(B)(2).

La. R.S. 40:1299.42(D)(5).

In reaching its decision in Ginn, supra, the court discussed the fact that the legislature distinguished a settlement under La. R.S. 40:1299.44(0) between the insurer of a health care provider or a self-insured health care provider and a plaintiff from a settlement under La. R.S. 40:1299.42(D)(5) |17between a health care provider and/or an insurer and the plaintiff. Furthermore, the court left open the question of whether La. R.S. 40:1299.42(D)(5) applies in situations where La. R.S. 40:1299.44(0) is inapplicable. Although the court recognized the holding of Horil v. Scheinhorn, 95-0967 (La.11/27/95), 663 So.2d 697, that the provisions of La. R.S. 40:1299.44(0) must be closely followed where the settling claimant expects to ultimately recover from the PCF, the court noted that the applicability of La. R.S. 40:1299.44(0) was not questioned in Horil, supra. Here, the unusual circumstances of Arcadia’s insurer being placed into liquidation during the course of litigation makes La. R.S. 40:1299.44(0) inapplicable for the reasons expressed in Ginn, supra. However, the question of the applicability of La. R.S. 40:1299.42(D)(5) remains open.

CONCLUSION

For the reasons expressed, the motion to dismiss the appeal is denied. In light of the holding in Ginn, supra, interpreting the clear and unambiguous language of La. R.S. 40:1299.44(0), we conclude that the trial court erred granting the plaintiffs’ motion for partial summary judgment, overruling the PCF’s objection thereto, and approving the settlement under the provisions of La. R.S. 40:1299.44(0). The judgment of the trial court rendered March 3, 2003 is hereby reversed, and the matter is remanded for further proceedings. Costs are assessed equally between the plaintiffs and Arcadia.

REVERSED.

MATTER REMANDED FOR FURTHER PROCEEDINGS.

      . We also find this matter subject to review through exercise of our supervisory jurisdiction under La. C.C.P. art. 2201 and La. Const. Art. 5, § 10.

      . In the Louisiana Administrative Register, Volume 29, Issue 3 of March 20, 2003(29:3 La. Reg. 344), the PCF Oversight Board indicated its intent to amend § 515(B) to provide "when such certification is. required to evidence enrollment or qualification with the fund....” (Emphasis added.)

      . La. R.S. 40:1299.44(C) provides:
      C. If the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability on a claim against its insured and claimant is demanding an amount in excess thereof from the patient’s compensation fund for a complete and final release, then the following procedure must be followed:
      (1) A petition shall be filed by the claimant with the court in which the action is pending against the health care provider, if none is pending in the parish where plaintiff or defendant is domiciled seeking (a) approval of an agreed settlement, if any, and/or (b) demanding payment of damages from the patient’s compensation fund.
      (2) A copy of the petition shall be served on the board, the health care provider and his insurer, at least ten days before filing and shall contain sufficient information to inform the other parties about the nature of the claim and the additional amount demanded.
      (3) The board and the insurer of the health care provider or the self-insured health care provider as the case may be, may agree to a settlement with the claimant from the patient's compensation fund, or the board and the insurer of the health care provider or the self-insured health care provider as the case may be, may file written objections to the payment of the amount demanded. The agreement or objections to the payment demanded shall be filed within twenty days after the petition is filed.
      (4) As soon as practicable after the petition is filed in the court the judge shall fix the date on which the petition seeking approval of the agreed settlement and/or demanding payment of damages from the fund shall be heard, and shall notify the claimant, the insurer of the health care provider or the self-insured health care provider as the case may be, and the board thereof as provided by law.
      (5) At the hearing the board, the claimant, and the insurer of the health care provider or the self-insured health care provider as the case may be, may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if it is submitted on agreement without objections. If the board, the insurer of the health care provider or the selfinsured health care provider as the case may be, and the claimant cannot agree on the amount, if any, to be paid out of the patient's compensation fund, then the court shall determine the amount of claimant’s damages, if any, in excess of the amount already paid by the insurer of the health care provider. The court shall determine the amount for which the fund is liable and render a finding and judgment accordingly. In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
      (6) Any settlement approved by the court shall not be appealed. Any judgment of the court fixing damages recoverable in any such contested proceeding shall be appealable pursuant to the rules governing appeals in any other civil court case tried by the court.
      (7) For the benefit of both the insured and the patient's compensation fund, the insurer of the health provider shall exercise good faith and reasonable care both in evaluating the plaintiff's claim and in considering and acting upon settlement thereof. A self-insured health care provider shall, for the benefit of the patient's compensation fund, also exercise good faith and reasonable care both in evaluating the plaintiff’s claim and in considering and acting upon settlement thereof.
      (8) The parties may agree that any amounts due from the patient's compensation fund pursuant to La. R.S. 40:1299.44(B) be paid by annuity contract purchased by the patient's compensation fund for and on behalf of the claimant.
      (9) Notwithstanding any other provision of this Part, any self-insured health care provider who has agreed to settle its liability on a claim and has been released by the claimant for such claim or any other claim arising from the same cause of action shall be removed as a party to the petition, and his name shall be removed from any judgment that is rendered in the proceeding. Such release shall be filed with the clerk of court in the parish in which the petition is filed upon the filing of a properly executed, sworn release and settlement of claim.

      . Because of this ruling, we will not address the assignments of error regarding the denial of the PCF's exception of no cause of action and the delineation of the settlement amount.


author: |, STEWART, J. | FARAWAY, J.,

text:
    Lane T. CHISHOLM and Susan Chisholm, Plaintiffs-Appellants, v. CLARENDON NATIONAL INSURANCE COMPANY, Jerry L. Parker, Individually and d/b/a Action Mobile Home Movers and Max Robinson, Defendants-Appellees.
    No. 37,022-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 9, 2003.
    Rehearing Denied Aug. 14, 2003.

      Sam N. Gregorio, Shreveport, Stanga & Mustian, by Alonzo T. Stanga, III, Metair-ie, for Appellants.
    Lunn, Irion, Salley, Carlisle & Gardner, by James A. Mijalis, Shreveport, for Ap-pellees Clarendon National Ins. Co., Jerry L. Parker and Max Robinson.

      Before STEWART, CARAWAY and MOORE, JJ.
   |, STEWART, J.

This is an appeal from a wrongful death suit brought by the family of Jeremy Chisholm against Jerry Parker (“Parker”) and Max Robinson (“Robinson”) individually and d/b/a Action Home Movers (“Action”) and its insurer, Clarendon National Insurance Company (“Clarendon”). Jeremy died as a result of an accident that occurred when he collided with a mobile home being moved by Parker and Robinson. Following a trial on the merits, the jury returned a verdict of 10-2 finding no negligence by Parker or Robinson. Next, the trial judge denied the plaintiffs’ motion for Judgment Notwithstanding the Verdict (JNOV) and motion for a new trial. However, finding that the trial court committed manifest error, we reverse and render.

FACTS

On March 3, 2000, at about 4:00 p.m., 21-year old Jeremy Chisholm was driving north on Louisiana Highway 171 headed to Oklahoma City, Oklahoma from Leesville, Louisiana. At this same time, Jerry Parker and Max Robinson of Action Home Movers were moving a mobile home south on Highway 171. Robinson was driving the vehicle which pulled the mobile home, also called a toter, and Parker was driving the escort vehicle which is far ahead of the toter. The width of Highway 171 is eleven feet wide with a seven foot shoulder. As Parker approached Chisholm on the highway, he moved his vehicle to the centerline of the highway in an effort warn oncoming motorists. Robinson’s friend, James Weldon, was a passenger in the toter, and he noticed the Chisholm vehicle as it passed them on the highway. However, Robinson admitted that he was not paying attention to the Chisholm vehicle as it passed because he was looking out of the side Lmirror and he was preoccupied with the stalled traffic behind him. Weldon shouted for Robinson to “Watch out!,” but it was too late, and the Toyota that Chisholm was driving collided with the front edge of the mobile home. The collision caused the decapitation and instant death of Chisholm. Following a trial on the merits, the jury returned a verdict 10-2 in favor of the defendants. Following the trial court’s denial of the plaintiffs’ motion for JNOV and a new trial, this appeal ensued.

DISCUSSION

Standard of Review

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. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Reversal of findings of fact on appeal requires that (1) the appellate court find from the record that no reasonable factual basis exists for the trial court’s finding, and (2) the appellate court determine that the record establishes the finding is clearly wrong or manifestly erroneous. Stobart v. State, Through Department of Transportation and Devebpment, 617 So.2d 880 (La.1993).

A JNOV is a procedural device authorized by La. C.C.P. art. 1811 whereby the trial court may correct a legally erroneous verdict by modifying fault or damages, or both, that the jury may have assessed. Matthews v. Arkla Lubricants, Inc., 32,121 (La.App.2d Cir.8/18/99), 740 So.2d 787; Greene v. Fox Crossing, Inc., 32,774 (La.App.2d Cir.3/1/00), 754 So.2d 339, writ denied, 2000-0944 (La.5/26/00), 762 So.2d 1108. If the opposing ^evidence is of such quality and weight that reasonable men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. To determine that the evidence was insufficient as a matter of law requires a finding that no valid line of reasoning and permissible inferences could possibly lead rational persons to the conclusions reached by the jury. Matthews, supra. The JNOV should not be granted merely when there is a preponderance of evidence for the mover. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991); Craighead v. Preferred Risk Mutual Insurance Company, 33,731 (La.App.2d Cir.8/25/00), 769 So.2d 112, writ denied, 2000-2946 (La.12/15/00), 777 So.2d 1230.

As noted by this court in Gibson v. Bossier City General Hosp., 594 So.2d 1332 (La.App. 2d Cir.1991), the scales are clearly tilted in favor of the survival of the jury’s verdict, but the trial court- is left with a breadth of discretion which varies with the facts and events of each case. What the appellate court reviews is the decision of the trial judge, who has attempted to balance the great deference afforded to the jury’s verdict against his obligation to insure that substantial justice was accomplished. Thus, in reviewing the trial court’s determination regarding whether to grant a JNOY or new trial, the appellate court’s review is limited to whether the trial court committed manifest error in its denial of the motions. Gibson, supra.

| ¿Finally, fault in a vehicular collision is determined by judging the conduct of each motorist under the facts and circumstances of each particular case. Matthews, supra.

Although the findings of the trier of fact are normally accorded much discretion, this particular decision is rife with manifest error. The jury concluded 10-2 that Chisholm was one hundred percent at fault for the accident that caused his death. We find that no reasonable view of the evidence submitted permits this conclusion. Our review of the evidence in this matter demands a reapportionment of the fault because reasonable men viewing the evidence could not have found the defendants free from fault.

Our review of the uncontested facts alone gives sufficient grounds for a reversal. Action had a sloppy mobile home moving operation. Parker admitted that he drove the escort at least 600 feet in front of the toter vehicle when the evidence clearly showed that a safer distance would have been 70-90 feet. By his own admission, Max Robinson, the driver of the toter, was grossly inattentive in failing to watch the road in front of him. He stated that he was preoccupied with the backlog of vehicles following the mobile home.

The testimony of each of the persons in the vehicles that were stuck behind the mobile home was that the trailer swung erratically across the center line from the southbound into the northbound lane and back to the shoulder making it difficult and hazardous to attempt to pass the mobile home. Salinda Bernard, who was in the second car following the mobile home, testified that she would have passed the mobile home, but it was too far over into the northbound lane for her to safely pass. Incidentally, Ms. | ¡¿Bernard was injured when the Chisholm vehicle exited the back of the mobile home and slammed into her car. Her husband, Adam, was driving the car at the time of the crash, and he testified that he briefly saw the Chisholm vehicle entirely within the northbound lane before the crash. He stated that the oncoming Chisholm vehicle prevented him from passing. Frankie Bossier, who was in the car immediately behind the mobile home, testified that the mobile home swerved frequently making passing difficult. However, she was unable to state what the position of the mobile home was immediately prior to the accident. The testimony of Maria Lopez demonstrated that the shoulder of the road was in poor condition such that Robinson could not have driven the mobile home over it without any trouble. This would explain her observation that oncoming cars from the northbound lane had to swerve to avoid the mobile home. A similar observation was made by Carolyn Gentry as she stated that cars were having to move over to the shoulder of the northbound lane to safely pass the mobile home.

The testimony at trial showed that Robinson failed to maintain a proper control over his load. Numerous witnesses testified that the mobile home was swerving, swaying, zigzagging, and fishtailing. Robinson himself said that it was rocking and shaking. Plaintiffs assert that one of the reasons Robinson could not control the load was because the trailer had no brakes. Moreover, Parker, as the escort driver, breached his duty to warn oncoming motorists by positioning himself at an excessive distance in front of the load. The Louisiana Regulations for Trucks Vehicles and Loads (“Regulations”) | firequire the escort vehicle to “maintain sufficient distance to warn oncoming vehicles, ... but not so far as to hinder control over the movement.”

The defendants’ negligence was not only demonstrated by the subjective testimony of witnesses, but also by the defendants’ failure to follow the objective rules promulgated under Louisiana law. In addition to failing to maintain the escort vehicle at a sufficient distance to warn oncoming vehicles, they also failed to place the four warning flags on the widest parts of the vehicle as required by the Regulations. The defendants placed the flags on the mirrors of the toter vehicle rather than on the mobile home. Robinson admitted that there was nothing on the 16 feet x 80 feet mobile home to give a passing motorist a reference without a flag. The width of Highway 171 is only 11 feet. Therefore, the placement of the flags on the mirrors of the toter vehicle rather than the on the outer edges of the mobile home is of paramount significance.

Lieutenant John Kay (“Kay”) testified that the placing of flags on the mirrors instead of the outer edges of the mobile home was in violation of the Regulations. Kay’s testimony revealed that it was important to have these flags on the widest point of the mobile home to assist oncoming motorists to safely judge relative distances when passing the oversize load. It is undisputed that Chisholm should have seen this mobile home and tried to avoid it, but it simply cannot be concluded that the defendants’ failure to adequately place warning flags on the outermost part of the mobile home did not significantly contribute to the accident. Unlike the oversize load signs, the flashing lights, the toter’s headlights, and the red flags on the toter |7mirror, the purpose of the requirement is to assist the passing driver to avoid a collision with the mobile home. Even with all of the other warnings in place, it is still possible for an oncoming driver to not appreciate how far over into his lane the mobile home might be when flags are not properly placed on the sides of the mobile home. The evidence shows that there was a thirteen inch overlap of the Chisholm vehicle and the mobile home. It is clear that had the warning flags been placed on the widest part of the mobile home, they would have provided the necessary warning to Chisholm of the width of the mobile home.

We find, that the defendants’ failure to attach warning flags as required by the Regulations, their failure to maintain control over their vehicle, and their inattentiveness to oncoming traffic were significant causes of the accident. We note that when a warning is required, it is presumed that the injured party would have heeded and followed the warning had one been provided. Moore v. Chrysler Corp., 596 So.2d 225 (La.App. 2d Cir.1992), writ denied 599 So.2d 316 (La.1992) and writ denied, 599 So.2d 317 (La.1992); Cannon v. Cavalier Corp., 572 So.2d 299 (La.App. 2d Cir.1990). While it is undisputed that Chisholm should have seen the mobile home and taken greater care to take some evasive action, the defendants’ compound negligence was a greater contributing cause to this accident. Robinson’s negligence in failing to keep a proper lookout on the road was a cause in fact of the accident. A motorist’s duty of care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards. Morris v. Flores, 36,932 (La.App.2d Cir.3/7/03), 840 So.2d 1257.

|sThe facts show that Robinson did not see the Chisholm vehicle until it was 20 feet from him. Robinson admitted that there were no obstructions or anything else that would have prevented him from seeing past the escort vehicle, which was 600 feet away, yet he did not see the headlights of the Chisholm vehicle. With the obvious duty that the defendants owed to Jeremy Chisholm, and their breach of that duty, they are substantially liable under a comparative fault standard.

There was conflicting expert testimony concerning the exact location of the vehicles at the time of the accident. The plaintiffs expert, John Bates, concluded that the lack of proper safety equipment on the mobile home impaired the reaction time of Chisholm preventing him from taking evasive action. He contended that in spite of the small size of the shoulder, the mobile home could have been driven on the shoulder of the highway out of the way of oncoming traffic. Lastly, he asserted that the fact that much of the debris was in the northbound lane suggested that the initial impact took place in Chisholm’s lane because the mobile home was over the center line.

The defendants’ expert, Vernon Wade, asserted that the yaw marks, or marks made when a tire slides across the road in a perpendicular fashion, suggested that the Chisholm vehicle was actually in the southbound lane at the time of the accident. However, he admitted that there were no marks on the highway that definitively indicated the initial point of impact between the mobile home and the Chisholm vehicle.

Despite the competing testimony, we find that the preponderance of the evidence clearly suggests that the defendants bear a much greater degree |9of fault for the accident. The independent testimony of the witnesses to the accident demonstrates that the mobile home constantly swerved across the center lane into Chisholm’s lane. The evidence shows that Parker drove the escort vehicle at a much greater distance than was acceptable under the Regulations. Robinson admitted that he was not paying attention to oncoming traffic as he drove the toter vehicle when he collided with the Toyota. Lastly, the evidence shows that the defendants were in violation of several safety regulations by failing to place the proper warning equipment on the mobile home. Thus, we find the judgment of the trial court was manifestly erroneous. Finding that the trial court’s denial of the plaintiffs’ motion for JNOV was manifest error, we must determine the facts de novo from the record and render a judgment on the merits. Rosell, supra; Holt v. Bethany Land Co., 36,888 (La.App.2d Cir.4/9/03), 843 So.2d 606.

Comparative Fault

Because we conclude the record establishes fault on the part of the defendants, we must apply the comparative fault factors announced in Watson v. State Farm Fire & Cas., Ins. Co., 469 So.2d 967 (La.1985), to apportion fault. When examining an accident using the Watson factors the court should consider (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.

| Application of these factors leads us to apportion a greater percentage of fault to the defendants. We find that the record clearly demonstrates that the defendants ignored the danger associated with the business of moving the mobile home and that their failure to abide by the Regulations was a significant cause in fact of this accident and the death of Jeremy Chisholm. Moving a mobile home is not a simple process, and the testimony shows that it is not an easy task to keep the 16 feet x 80 feet, 29,000 pound load from swerving and obstructing the entire highway. However, the superior capacity of Parker and Robinson to appreciate the danger involved must weigh against them in this case. Jerry Parker decided to drive the escort vehicle at an improper distance ahead of the mobile home. Moreover, Parker should have made sure that the mobile home had the appropriate warnings required by law. Finally, Robinson’s gross inattentiveness caused him not to see the Chisholm vehicle. Consequently, we reapportion fault in the following manner:

Jeremy Chisholm 30%
Max Robinson/Jerry Parker (individual- 70% ly and d/b/a Action Home Movers) Clarendon National Insurance Company

Damages

Appellants contend that the jurisprudence supports a significant award of general damages in this matter. See Duncan v. Kansas City Railway Co., 2000-0066 (La.10/30/00), 773 So.2d 670 (affirming an award of $475,000 each to the parents of a 12 year old killed in a train collision); Harris v. Carter, 33,951 (La.App.2d Cir.10/4/00), 768 So.2d 827, writ denied 2000-3056 (La.1/5/01), 778 So.2d 602 (award of $315,000 for wrongful death in a police shooting). We agree.

The record demonstrates that Chisholm enjoyed a close family relationship. In fact, he was on his way to visit his mother and father before leaving for military assignment in Korea when he was killed. Jeremy’s father, Lane, testified that he and his wife had undergone counseling to better deal with the loss of their only son. We find that their sense of loss and grief is amply demonstrated in the record.

Jeremy was 21 years old at the time of his death, and according to the testimony of Captain Vincent Nwafor, his Unit Commander at Ft. Polk, he had a bright and prosperous career ahead of him in the United States Army.

Accordingly, we award $350,000 per parent for loss of consortium. We also note other cases containing similar awards for the loss of an adult child. See Gladney v. Sneed, 32,107 (La.App.2d Cir.8/18/99), 742 So.2d 642, writ denied, 1999-2930 (La.1/14/00), 753 So.2d 215 (award of $315,000 to father for wrongful death of 25-year-old daughter was not abuse of discretion); Bryant v. Solomon, 97-2008 (La.App. 4th Cir.3/25/98), 712 So.2d 145 (affirming an award of $300,000 to one parent for the wrongful death of an adult daughter); Hasha v. Calcasieu Parish Police Jury, 94-705 (La.App. 3d Cir.2/15/95), 651 So.2d 865, writs denied, 95-0667, 95-0676 (La.4/28/95), 653 So.2d 592, 593 (award of $325,000 per parent for loss of 18-year-old son was not manifestly erroneous).

| ^CONCLUSION

For the foregoing reasons, we reverse and vacate the ruling of the trial court finding that the Robinson and Parker were zero percent at fault. We hereby render judgment apportioning fault for the accident that resulted in the death of Jeremy Chisholm among the parties as follows:

Jeremy Chisholm 30%
Max Robinson/Jerry Parker (individual- 70% ly and d/b/a Action Home Movers) Clarendon National Insurance Company

Accordingly, we render judgment in favor of Lane Chisholm and Susan Chisholm and against Jerry Parker and Max Robinson individually, and d/b/a Action Home Movers, and their insurer, Clarendon National Insurance Company for damages of $350,000 each to Lane Chisholm and Susan Chisholm. This award shall be reduced by the percentage of fault attributable to Jeremy Chisholm. Costs of this appeal are assessed to the appellee.

REVERSED, VACATED, AND RENDERED.

CARAWAY, J., concurs with written reasons.

| FARAWAY, J.,

concurring,

I agree with the majority in determining that the jury’s verdict was manifestly erroneous and clearly wrong. On the critical issue of the location of the toter and the mobile home, it is unreasonable to conclude that the mobile home had not intruded over into the decedent’s lane of travel and was not a cause-in-fact of the accident. The defendants’ duties to properly alert the decedent to the obstruction in his lane of travel were therefore breached.

This concurrence is to make clear that our allocation of fault was made de novo without any deference to the jury verdict. Contrast, Cox v. Moore, 01-878 (La.App. 3d Cir.12/12/01), 805 So.2d 277. The reallocation of fault under Clement v. Frey, 95-1119 (La.01/16/96), 666 So.2d 607, requires deference to a trier-of-fact, who has found both the plaintiff and the defendant at fault under our comparative fault regime. Nevertheless, when the fact finder incorrectly finds no fault on one party and conducts no analysis under Watson, such legal error skews the process altogether, requiring de novo review. Lasha v. Olin, 625 So.2d 1002 (La.1993). While a trier-of-fact could reasonably apportion a lesser amount of fault on defendants in this case, this court has allocated them 70% without deference to the jury’s conclusion regarding their lack of fault.

APPLICATION FOR REHEARING

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

Rehearing denied.


author:
h CARAWAY, J.
      hBROWN, C.J.,

text:
    Juanita June STRANGE and James Strange, Plaintiffs-Appellants, v. Pankaj SHROFF, M.D., Russell O. Cummings, Jr., M.D.; Russell O. Cummings, Jr., M.D., A Professional Medical Corporation; Hospital Service District No. 1 of Caldwell Parish d/b/a Citizens Medical Center, Defendants-Appellee.
    No. 37,353-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 16, 2003.

      Rodney G. Cater, David J. Foshee, New Orleans, for Appellants.
    Donald J. Anzelmo, Monroe, for Appel-lee.
    Before BROWN, STEWART and CARAWAY, JJ.
   h CARAWAY, J.

This medical malpractice action stems from a patient’s untimely discharge from the hospital following surgery. The patient’s primary doctor and internist, who admitted her to the hospital, did not directly consult with the surgeon concerning the propriety of the patient’s discharge. Within a few hours after the discharge, due to complications from the surgery, the patient was hospitalized again with life-threatening conditions requiring an emergency second surgery. Following a jury trial, the jury determined that no malpractice occurred, and the patient and her husband appeal. Finding no manifest error in the ruling, we affirm.

Facts

On May 12, 1992, Juanita Strange of Columbia, Louisiana, visited the local office of Dr. Pankaj Shroff, her regular internist. She complained of lower abdominal pain which had persisted for a few days. The next day the pain worsened and, pursuant to Dr. Shroffs instructions, she went to Citizens Medical Center Emergency Room in Columbia, where Dr. Shroff examined her, ordered diagnostic tests, and admitted her to the hospital. Dr. Shroff also requested a surgical consultation from Dr. Russell Cummings. Dr. Cummings testified that his examination was essentially negative except for some tenderness on the right side of Mrs. Strange’s abdomen. Her abdominal x-ray did not reveal an obstruction, nor did Dr. Cummings initially suspect an obstruction.

Because of her pain and the possibility of acute appendicitis, Dr. Cummings operated on Mrs. Strange on May 14, 1992, the day after her ^admission to the hospital. The exploratory laparotomy consisted of lysis of pelvic adhesions and removal of a right ovarian cyst. Dr. Cummings testified that the adhesions, which were bound down Mrs. Strange’s right side, were the source of her abdominal pain. Dr. Shroff and Dr. Cummings both followed Mrs. Strange post-operatively and saw her each day during their rounds, except for a four day interval when Dr. Shroff attended a medical conference.

Dr. Cummings testified that Mrs. Strange recovered as expected immediately following surgery, but when she started eating again, she had problems with abdominal distension and vomiting. On May 19, 1992, a second abdominal x-ray was ordered by Dr. Cummings. The x-ray revealed a paralytic ileus or a possible partial small bowel obstruction. Dr. Cummings testified that an ileus is impaired motility of the intestine, and that any abdominal surgery can cause the bowel to be paralyzed for a certain length of time. As normal bowel activity resumes, bowel sounds are present and the patient begins to pass gas and have bowel movements. Dr. Cummings also stated that after surgery it is common for adhesions to reform causing an intestinal blockage.

After the second x-ray, during the night and early morning of May 21-22, Mrs. Strange vomited a large quantity of liquid. Dr. Cummings explained that the vomiting was still consistent with an ileus, rather than a partial obstruction. In spite of the vomiting, Mrs. Strange had flatus and passed stool, both of which indicated postoperative improvement. Dr. Cummings testified that he ordered no further x-ray because by the morning 13of May 23, when he last saw Mrs. Strange, there was no clinical evidence of an impending problem with ileus or blockage.

On May 22, Dr. Shroff ordered blood work after the vomiting episode. Plaintiffs’ expert witness, Dr. Bruce Samuels, testified at trial that most of the laboratory tests were normal, although the results of the Complete Blood Count profile (“CBC”) were not normal. Mrs. Strange’s BUN, creatinine and electrolytes were all within normal limits. Dr. Samuels, who is an internist, testified that Dr. Shroffs action in ordering the blood work after the vomiting met the appropriate standard of care.

Mrs. Strange was discharged from Citizens on Saturday, May 23, 1992. Dr. Cummings saw her at 8:30 that morning during his rounds. Dr. Cummings testified that he did not feel that Mrs. Strange was ready to go home because she still required pain medication and because of the prior vomiting episode. Nevertheless, Mr. and Mrs. Strange both reported to Dr. Cummings their desire to go home. Dr. Cummings’ entry in the physician’s progress record on the date of Mrs. Strange’s discharge from Citizens reflected the following:

5-23 Had 2 pain shots last night— wants to go home — stop pain meds— try Anaprox DS prn pain. JC

The charge nurse, Suzanne Allen, accompanied both Dr. Cummings and Dr. Shroff on their rounds that day. After Dr. Cummings saw Mrs. Strange, she entered the following nurse’s progress note:

At 8:30 Dr. Cummings visited. New orders were noted. Encouraged to ambulate. Lungs clear. Abdomen soft with audible bowel sounds noted. No complaints of nausea and vomiting this a.m. Heplock intact left forearm. Site healthy. Ambulating in hall with husband. Tolerated well. S. Allen

| ¿At 11:30 that morning another nurse removed Mrs. Strange’s staples. Ms. Allen’s next progress note entered at 12:00 noon reflected that Mrs. Strange was in bed, and her pulse and respirations were slightly elevated. Ms. Allen attributed this to Mrs. Strange’s walking in the hallways. Ms. Allen noted that Mrs. Strange “states [she] wants to go home.”

Ms. Allen made rounds with Dr. Shroff shortly before 1:00 p.m. and testified at trial as follows:

... as we’re going down the hall or at the nurses station, I usually kind of fill him in with what’s going on with the patients or as we’re making rounds I let him know before we go in the patient’s room. I told him that she had been insistent or adamant, actually, about going home all day. I told him what Dr. Cummings had said that morning that, uh, she had wanted to go home but he didn’t feel comfortable at that time of her going home because she had just received. some IM pain medicine and wanted her to try some pain medicine by mouth, which he had ordered....

Ms. Allen told Dr. Shroff that Mrs. Strange had neither reported any pain nor requested any pain medication since early that morning. Dr. Shroff instructed Ms. Allen to retake Mrs. Strange’s vital signs while they were on rounds, and her pulse and respirations had gone back down to normal. Ms. Men entered the following note in the chart:

1:00 p.m. Dr. Shroff visited. Heplock discontinued intact and bandaid applied. New orders noted. Temp 97, pulse 92, respirations 22, blood pressure' 140/80. Prescription given per Dr. Shroff with instructions. S. Men
1:55 p.m. To car per wheelchair accompanied per nurses aide and husband. Discharge instructions given. Left in stable condition. S. Men

Dr. Shroff testified as follows concerning his recollection of the events that led to Mrs. Strange’s discharge:

| fjThis is the ten[th] day after surgery. I saw the record. She had been medicated earlier in the morning, but since then she has been ambulating. I talked to the nurses. She said that she had been ambulating in the halls multiple times. She had ate about fifty (50%) of her breakfast. She ate about seventy-five (75%) of her lunch. She did not has [sic] thrown up. Md she is feeling good. Md, uh, when I went in there to see, she just said she wants to go home. So, uh, I wanted to examine her and see what is going on there. Her examination was completely normal. She had no pain since earlier that morning. She had not taken any other oral pain medication. As I said, she ate very well. She had no distension of her bowel movements. She had no tenderness in the abdomen. She had good bowel movements. So, I sit down, I give them the instructions. And told them what they need to do if they go home. I also talk to her husband when he was sitting beside her and give all the instructions. I gave him the prescriptions. Also told them that if she goes home, she starts having some nausea, vomiting, or she cannot eat or drink, bring her right back here....

Dr. Shroff testified as follows concerning his discharge summary:

Well, from the Dr. Cummings note, my examination on that day, I had no reason for her to be staying here and she wanted to go home, also, which (inaudible). The patient was stable. There was no sign of any complications.

Dr. Shroffs discharge summary further stated “Per Dr. Cummings, she was surgically stable to go home.” When questioned at trial about what this meant, he explained that he reviewed Dr. Cummings’ note from that morning, and together with his own examination and previous experience working with Dr. Cummings, “... the patient was stable enough to go.” Dr. Shroff testified: “[Dr. Cummings] did not order anything. So, I, and from my examination I knew there was nothing of his concern. And he did not even call me or did not put anything in the chart that he has any concern about the patient.”

|fiThe same nurse, Ms. Allen, received a phone call at Citizens later that afternoon, concerning which she testified as follows:

A Okay. I’m not sure of the accurate time, uh, it was probably between four and five, five or five-thirty. I received a phone call.- Mr. Strange asked to speak to the doctor, either Dr. Shroff or Dr. Cummings, and I told him that they weren’t- in the building. And he told me that she was not feeling well. And I asked him, I asked him if she had gone home and over done it, is what I asked him. And he said, and he said, No, She’s just not feeling good. She’s real weak. And I asked him, you know, what was going on. And he said, Well, she’s just real, real weak and she’s not feeling good. And I said, Well, then you need to bring her back to the emergency room. The doctor had already instructed her on that if she, you know, had any problems • to come to the emergency room. And I told him to bring her back. And he said okay. But they never showed up.
Q Did Mr. Strange indicate to you when he first noticed that he wife wasn’t doing well after she was home?
A He told me that he had left and gone to the drugstore to get her medicine, and when he came back she was real weak.

Mr. Strange’s testimony regarding the afternoon of his wife’s discharge from the hospital was contrary to that of Ms. Allen, Dr. Shroff and the medical records. He indicated that he and his wife knew that she was too weak to go home. He said that as they left the hospital, Mrs. Strange “was so sick” that he had to take her to their house before he could go to the pharmacy to fill her prescriptions. Prior to contacting the Citizens’ nurse, he said that Mrs. Strange was “continuously hollering and getting worse.” Mr. Strange testified that his brother-in-law was at his home helping to attend to his sister and that after the telephone call to Citizens, he suggested that Mr. Strange take Mrs. Strange instead to the emergency room at St. Francis Hospital in Monroe.

|7When Mrs. Strange arrived at St. Francis at 7:46 p.m., she was acutely ill. The internist on call, Dr. Thomas Gullatt, testified that she was “mortally tachyp-neic” and had “severe metabolic acidosis with associated hyperglycemia, possible diabetic ketoacidosis, possible peritonitis and bowel obstruction or bowel strangulation, intravascular volume depletion and possible septic shock.” Mrs. Strange, who is diabetic, was transferred to ICU, where Dr. Frank Sartor, a surgeon, evaluated her abdomen. After she was medically stabilized, Dr. Sartor performed surgery for a bowel obstruction consisting of a bowel resection and lysis of adhesions. Mrs. Strange’s post-operative hospitalization at St. Francis from May 23 through July 15, 1992, was characterized as “stormy.”

The plaintiffs filed suit against Dr. Shroff, Dr. Cummings, and Citizens alleging the misdiagnosis of her post-operative condition and premature discharge from the hospital. Following the dismissal of Dr. Cummings and Citizens, the case proceeded to a trial by jury against Dr. Shroff. At the conclusion of the trial, the jury answered the following interrogatory in the negative:

Do you find from a preponderance of the evidence that the treatment rendered to Juanita Strange by. Dr. Pankaj Shroff fell below the standard of care ordinarily practiced by other specialists in his field acting under similar circumstances and that this breach in the standard of care was the sole proximate cause or a contributing cause of the damages sustained by the plaintiffs?

The plaintiffs’ suit against Dr. Shroff was therefore dismissed.

On appeal, the plaintiffs make two assignments of error. They assert that the trial court erred by refusing to grant their motion in limine to | sprevent testimony relating to the fault of Dr. Cummings. Secondly, they assert that the trial court erred in denying their motion for judgment notwithstanding the verdict (JNOV) and that the jury’s verdict was manifestly erroneous and clearly wrong.

Motion in Limine

At the beginning of the trial, plaintiffs sought a ruling to preclude the introduction of evidence of Dr. Cummings’ fault. Plaintiffs argued that Dr. Shroff would attempt to exculpate himself at trial by showing that Dr. Cummings failed to communicate to Dr. Shroff his opposition to Mrs. Strange’s discharge. Plaintiffs argue that the dismissal of Dr. Cummings from the suit by a summary judgment exonerated him and that Dr. Shroff should not be permitted to allege any of Dr. Cummings’ fault at trial. The trial court denied the motion in limine, ruling that “although no mention may be made of any breach of a standard of care [by Dr. Cummings], whatever is in the medical records or not in the medical records can be referred to.” Later, during the cross-examination of plaintiffs’ medical expert, we note that plaintiffs’ counsel stipulated that Dr. Cummings did not deviate from the standard of care of a surgeon and Dr. Shroff did not dispute that stipulation.

The issue of Dr. Cummings’ fault was never at issue or placed before the jury to decide. Nevertheless, the trial court, when faced with the motion in limine, had to determine the relevance of Dr. Cummings’ actions or inaction regarding his and Dr. Shroffs patient. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of ^consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401.

In this case, Dr. Cummings’ collaborative actions with Dr. Shroff and their communications and non-communication regarding Mrs. Strange were relevant evidence for the determination of Dr. Shroffs alleged malpractice. Vital to the plaintiffs’ case was Dr. Cummings’ position that he would not have discharged the patient on May 23. From our review of the evidence, the subsequent cross-examination and review of Dr. Cummings’ actions by the defense were relevant inquiries, and the trial court’s refusal to grant the motion in li-mine was proper.

Medical Malpractice

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.

|inThus, 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, 643 So.2d 1228 (La.10/17/94); Sewell v. United States, 629 F.Supp. 448 (W.D.La.1986).

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, 00-2282 (La.App. 1st Cir.12/28/01), 806 So.2d 826; writ denied, 02-905 (La.5/31/02), 817 So.2d 105, 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.

The question posed for the jury’s consideration at the end of trial was in a single interrogatory addressing all elements of proof of the malpractice l^claim required by La. R.S. 9:2794(A) — standard of care, breach, and cause-in-fact. Likewise, by rejecting plaintiffs motion for JNOV, the trial judge upheld the verdict against the plaintiff, finding that the jury could conclude that one or more of the elements was not supported by competent evidence and that the verdict was not wholly unreasonable. The rigorous standard regarding JNOY is based upon the principle that “when there is a jury, the jury is the trier of fact.” Scott v. Hosp. Serv. Dist. No. 1 of St. Charles Parish, 496 So.2d 270, 273 (La.1986). Therefore, we will likewise review whether the jury was manifestly erroneous or clearly wrong in determining that any one or all of the elements for this malpractice claim was not established by the plaintiffs.

Cause-In-Fact

The cause-in-fact inquiry asks whether Mrs. Strange “suffered injuries that would not otherwise have been incurred” but for her discharge from the care of a hospital on May 23. By 7:46 p.m., when Mrs. Strange reached the St. Francis emergency room, she was in shock. Her complications of dehydration, diabetic acidosis, tachycardia, and low blood pressure which developed in the 5-1/2 hours since her discharge from Citizens would clearly not have been serious and life-threatening had she remained hospitalized. Dr. Shroff admitted in his testimony that those serious complications would have been prevented by IV fluids and the monitoring of Mrs. Strange’s vital signs and blood conditions in a hospital.

On the other hand, the area of Mrs. Strange’s small intestine, which Dr. Sartor later removed after finding it to be “nonviable,” and the | ^adhesions which caused the intestinal obstruction were internal problems which were caused by the initial surgery and which were present, yet undetected, upon Mrs. Strange’s discharge at 2:00 p.m. Although plaintiffs’ expert, Dr. Samuels, suggested that the second surgery and the removal of the portion of the small intestine may have been avoidable, we find from the weight of the other medical evidence that the jury could reasonably conclude that the second surgery was inevitable at the time of the 2:00 p.m. discharge and that both Drs. Shroff and Cummings had not fallen below the standard of care for their failure to have detected those problems on the morning and early afternoon of May 23. Plaintiffs present no argument in this appeal that the jury was manifestly erroneous in rejecting their claim that Dr. Shroff misdiagnosed or failed to properly act with regard to the ileus and partial bowel obstruction prior to the time of her discharge and, as noted above, they stipulated that Dr. Cummings met the standard of care.

Despite Dr. Shroffs admission that Mrs. Strange’s complications would have been controlled had she remained in the hospital, the causation issue is complicated by the impact of the extensive delay caused by Mrs. Strange’s decision to go to St. Francis instead of returning immediately to Citizens. The nurse, Ms. Allen, testified that as early as 4:00 p.m., two hours after Mrs. Strange’s discharge from the hospital, she received Mr. Strange’s phone call concerning his wife’s deteriorating condition. She instructed him to return immediately to Citizens, which, in the small town of Columbia, could have occurred quickly. Consequently, the jury could view the evidence as containing an unexplained delay of over three hours before liaMrs. Strange obtained medical aid. The grave complications present at 8:00 p.m., when the doctors at St. Francis were struggling to acquaint themselves to their new patient’s condition and medical history, were clearly not the conditions which Mrs. Strange would have presented at Citizens at 4:30 p.m.

Based upon this view of the evidence of causation, we are constrained to find that the jury was not clearly wrong in concluding that the complications which were present upon Mrs. Strange’s arrival at St. Francis were caused by the unreasonable delay which occurred in the three-hour period after Ms. Allen instructed her to return to the hospital. Since we recognize that this causation issue presents a close question, a review of the standard of care issue concerning Dr. Shroffs decision to discharge Mrs. Strange further supports our determination that the jury’s verdict is not manifestly erroneous. Therefore, we will additionally review that issue.

Standard, of Care

At the trial of a medical malpractice action, the plaintiff must prove the applicable standard of care through expert medical testimony unless “the physician does an obviously careless act ... from which a lay person can infer negligence.” Pfiffner, supra at 1233. Opinions from medical professionals are necessary for the determination of the applicable standard of care and whether or not that standard was breached. Warren v. Everist, 30,187 (La.App.2d Cir.1/21/98), 706 So.2d 593, writ denied, 98-0477 (La.4/3/98), 717 So.2d 1132. It is for the trier of fact to evaluate conflicting expert opinion in relation to all of the circumstances of the case. Id. This 114expert testimony must be tempered by the knowledge that Louisiana law does not hold the physician to a standard of perfection. Garrett v. United States, 667 F.Supp. 1147 (W.D.La.1987). A treating physician — whether a general practitioner or specialist — is only liable if his actions fall below that standard of care ordinarily exercised under similar circumstances by members of his profession. Id.

Plaintiffs insist that the applicable standard of care requires the admitting physician and the consulting physician to consult or communicate directly with each other to reach a decision to discharge a patient from the hospital. From our review, this issue was disputed regarding the extent of communications necessary to be exchanged between the two doctors and further involved consideration of the appropriateness of both doctors’ diagnosis of Mrs. Strange’s condition prior to her discharge.

Plaintiffs’ position regarding the breach of the standard of care rests upon Dr. Cummings’ testimony that he did not discharge Mrs. Strange following his 8:30 a.m. visit on May 23 and that he did not talk with Dr. Shroff thereafter and agree to her discharge that afternoon. A thorough review of Dr. Cummings’ testimony, nevertheless, reveals that it was equally supportive of the defensive view of the standard of care. The reason Dr. Cummings was “adamant” that Mrs. Strange should not have been discharged in the morning of May 23 was because she had recently taken pain medication that could have masked symptoms of abdominal pain. He was just as adamant, however, that she had shown improvement since her hflast vomiting episode, and he defended his decision not to order a further x-ray.

Concerning the communication issue, Dr. Cummings was clear that he and Dr. Shroff had been in direct communication regarding their patient’s condition continuously prior to the morning of May 23. He also stated that because of their working relationship, he felt that he could have discharged Mrs. Strange unilaterally without obtaining Dr. Shroffs agreement. Dr. Cummings was never directly asked his view of whether Dr. Shroffs decision at 1:00 p.m. was improper. Instead, he gave the following testimony on direct examination by the plaintiffs’ attorney:

Q. And, Doctor, you know, I don’t want to beat a dead horse, but, you know, you certainly testified that Dr. Shroff had the right to discharge her in the afternoon.
A. It’s his patient.
Q. Right. I think you’ve made it pretty clear that you disagreed with it, you refused to discharge her?
A. When I saw her that morning, she was not ready for discharge.
Q. Well, you know, we keep going in circles here, but you also testified that you didn’t think she was ready in the afternoon?
A. I said if he would have called me and we would have discussed, I probably would have argued against it; however, it’s his prerogative, especially if he has a relationship with the patient, and I’ve done the same thing, to send a patient home. And if the patient becomes ill, to return immediately for care. I mean, that’s ...

The defense expert, Dr. Charles Morgan, was among the three internists who served on the Medical Review Panel convened to investigate l1fithe Stranges’ malpractice allegations. The panel opinion unanimously concluded that Dr. Shroff did not violate the standard of care in his treatment of Mrs. Strange. Dr. Morgan testified that nothing in the medical records suggested that Mrs. Strange was not ready for discharge, nor did anything suggest evidence of the complications that subsequently developed. He thought that Mrs. Strange’s earlier vomiting episode was a one-time event, and that any possible post-operative ileus she might have had resolved itself by the time she was discharged.

From this evidence, the issue of the standard of care is not as narrow as the plaintiffs’ argue. First, aside from the lack of direct communication between the two doctors, the jury could conclude that neither doctor breached the standard of care in their diagnosis of their patient’s condition on May 23. They both viewed that she had progressed so that the symptoms of ileus and blockage appeared to be ending. While the diagnosis was incorrect, it did not represent a breach of the standard of care. Therefore, as opined by Dr. Morgan, her discharge at 2:00 p.m. on May 23 might be allowed by doctors acting within the standard of care and the same unfortunate results would have followed. Second, although the medical testimony did indicate that the better practice would have been for the doctors to directly consult with each other before the discharge, there was additional expert testimony that Dr. Schroffs review of the medical chart regarding Dr. Cummings’ morning examination was sufficient communication. Dr. Cummings, himself, confirmed that Dr. Shroff was 117completely informed of the patient’s condition and in the position to make the discharge decision without further communication.

The standard of care in this case was not so obvious that the jury could infer negligence merely because the two doctors did not directly discuss the patient’s discharge. The standard of care was therefore dependent on the facts as determined from the evidence and explained by the medical experts. The jury’s prerogative to review those facts and consider those opinions requires us to give manifest error deference to their decision that the standard of care was not breached. We cannot say that a ruling that the standard of care was not breached in this case was clearly wrong.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court dismissing appellants’ suit. Costs of the appeal are assessed to appellants.

AFFIRMED.

BROWN, C.J., concurs with written reasons.

hBROWN, C.J.,

Concurring,

Cause-In-Fact

I respectfully disagree with the cause-in-fact conclusion in the majority opinion. I note that Nurse Allen was unsure of when Mr. Strange called concerning his wife’s deteriorating condition. She testified, “It was probably between four and five, five or five-thirty.” What is obvious is that the complications were occurring at the time of the call. I do not believe that the jury found or could have reasonably found that Mrs. Strange’s complications were due to an unreasonable delay in returning to the hospital.

Standard of Care

Although it is reasonable to conclude that x-rays should have been taken before Mrs. Strange was released, I have to defer to the jury’s discretion to accept some of the medical testimony that the standard of care was not breached in this regard. I also note that it was Dr. Cummings’ place to call for the x-rays and plaintiffs’ agreement that Dr. Cummings was not at fault.