author: J¿THOMAS F. DALEY, Judge.

text:
    HONTEX ENTERPRISES, INC. v. CITY OF WESTWEGO, Parish of Jefferson and West Jefferson Levee District, Board of Commissioners. D.R.S. Trading Co., Inc. and Indemnity Insurance of North America v. Louisiana Packing Company, Inc., Hontex Enterprises Inc., The City of Westwego, The Parish of Jefferson and the West Jefferson Levee District, Board of Commissioners.
    Nos. 02-CA-506, 02-CA-507.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 16, 2003.
    Darryl J. Carimi, Carimi Law Firm A Law Corporation, Metairie, LA, Attorneys for Plaintifi/Appellant, Hontex Enterprises, Inc.

      John J. Molaison, Jr., Gretna, LA, Attorney for Defendant/Appellee, City of Westwego.
    Christian B. Bogart, Kevin R. Derham, Duplass, Zwain, Bourgeois & Morton, Me-tairie, LA, Attorneys for Defendant/Appel-lee, West Jefferson Levee District, Board of Commissioners.
    Darnell Bludworth, Christopher T. Cho-cheles, Sher Garner Cahill Richter Klein McAlister & Hilbert, L.L.C., New Orleans, LA, Attorneys for Plaintiffs/2nd Appellants, D.R.S. Trading Co., Inc. and Indemnity Insurance Company of North America.
    Bruce A. North, David L. Colvin & Associates, Gretna, LA, Attorney for Defendant/Appellee, Parish of Jefferson.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   J¿THOMAS F. DALEY, Judge.

The plaintiffs, Hontex Enterprises, Inc. (Hontex) and D.R.S. Trading Co., Inc., and Indemnity Insurance Company of North America, (hereinafter referred to collectively as D.R.S.), have appealed the trial court’s grant of summary judgment in favor of the defendants.

FACTS:

In September 1998, Tropical Storm Frances sat in the Gulf of Mexico for several days pushing an enormous amount of water into the bayous and canals of the west bank of Jefferson Parish. On September 9, 1998, the Parish President declared a state of emergency in the parish. Hontex operated a shrimp processing plant outside the hurricane protection levee system in the City of Westwego on the banks of Bayou Segnette. Hontex allegedly had three million dollars worth of frozen seafood in its freezers. The plant flooded and the seafood was lost. D.R.S. owned $106,000.00 of the frozen seafood. Hontex and D.R.S. filed individual lawsuits against Jefferson Parish, the City of West-wego, and the West Jefferson Levee District, claiming that | ¿their actions caused the plant to flood and the damage to the seafood. The suits were consolidated. All defendants filed motions for summary judgment that were granted by the trial court. Following the denial of plaintiffs’ motion for new trial, Hontex and D.R.S. filed devolutive appeals. These appeals were consolidated.

The Hontex plant is accessed via a road that goes over a lower portion (gap) in the hurricane levee. As the water in bayou rose, the Hontex property began to take on water. On September 12, 1998, employees of Hontex called the city for sandbags and assistance in placing the sandbags along the banks of the bayou. The city responded and assisted Hontex employees in placing sandbags along the bank of the bayou. As the water continued to rise, the gap in the hurricane levee was filled with mud.

Hontex operates a pump station that pumps water from the plant grounds under the City of Westwego into the Mississippi River. This pump station is on the other side of the hurricane protection levee from the plant, that is, the pump station itself is located within the hurricane protection system within the levee system. A pipe from this system was spilling water onto the property adjacent to the plant. In response to a complaint from the adjacent landowner, employees of the city investigated the situation. The decision was made to build a ring levee around the pipe that was leaking water. The plaintiffs allege that the building of the ring levee around the pump station caused the pump station to flood and become inoperable. This in turn caused the plant to flood to such an extent that the compressors for the freezers became submerged in water and shorted out. The plaintiffs further allege that the act of filling the gap in the levee prevented them from accessing the plant to bring in trucks with carbon dioxide to keep the shrimp frozen.

In their motions for summary judgment, the defendants argue that they are immune from liability for their actions taken during this declared state of emergency. | sThey contend that La. R.S. 29:735 affords them immunity from all acts taken due to the state of emergency. While they acknowledge that the statute provides for an exception to the immunity if there is willful or malicious conduct on the part of the state agency, they contend there is absolutely no indication of any willful or malicious conduct. They further argue that they are immune from liability for all acts taken that are discretionary in nature under La. R.S. 9:2798.1. They contend that they had no choice but to close the gap in the levee because the water from Bayou Segneti e was entering the city through the gap. They contend that even if the Hon-tex purap would not have become inoperable, the pump would not have been able to keep up with the rain and rising bayou and the plant would have flooded any way. In addition, the City of Westwego argues the flooding was caused by an act of God over which they had no control.

In support of their position, the defendants attached the depositions of numerous people who were present at the Hon-tex facility on September 12,1998.

Mr. Edward Lee, the majority shareholder and president of Hontex testified in his deposition that he acquired the shrimp processing plant in March 1988 and he knew the property was outside of the hurricane protection levee system. He wanted this property so the shrimpers could pull their boats up to the docks at the back of his property. He explained that the plant had flooded previously but there was never a flood that caused major destruction. He did not move the inventory because there was no damage to inventory in any previous floods. He explained that the two large freezers that contained the frozen seafood were elevated eight to ten inches above the surrounding ground. He acknowledged that on September 12, 1998, there was water on the plant grounds due to seepage from the bayou and heavy rain. His employee called for sandbags and they arrived. He estimated there was about six or seven Linches of water on the plant grounds. The water later entered his office but it was unclear how high the level reached. He testified that the water was higher than his ankles but at no times did it go over the top of his shrimp boots. He testified that his pump system was handling the water, it would rise and the rain would slow down and the pumps would catch up, lowering the water level.

He testified that since he acquired the property the gap in the levee had never been closed prior to Tropical Storm Frances, nor was access to his plant limited in anyway. Although, he was not present when the gap was closed on September 12 th, he testified that his employees told him that they asked the driver of the dump truck to allow them to move a large truck off the property before they dumped the mud blocking the roadway. The truck driver called someone, then proceeded to dump the mud. He explained that the mud in the roadway is not what caused his freezers to flood, rather the mud in the roadway prevented him from bringing in equipment to protect the frozen products.

Mr. Lee testified that his two water discharge pumps pump 800 gallons of water per minute each. He explained that the building of the ring levee around the leaking pipe caused the pump station to flood rendering the pumps inoperable. He testified that had the pumps remained operable, the freezers would not have flooded.

Gerald Spohrer, executive director of West Jefferson Levee District (WJLD), testified in his deposition that the logs for emergency operations indicate that a call was received at 11:30 a.m. on September 12, 1998 stating that water was coming across the road from the gap in the levee in front of Hontex. He went to the area and when he arrived the gap had already been closed by City of Westwego employees. Mr. Spohrer testified that the levee in front of Hontex is six to six and a half feet high and the level of the gap is two and a half feet high. He estimated that if water was coming 17out over the road then the Hontex buildings had to have one to two feet of water inside. He did not speak to anyone at Hontex about closing the gap. Mr. Spohrer testified that the gap was routinely closed during times of high tides and this is generally done at the last minute because it is easy to do. He had no knowledge of the Hontex pump station or of the ring levee built around the leaking pipe. He testified that if the decision to build the ring levee had been made by WJLD employees, he would know about it. Mr. Sporher testified that he thought Hon-tex would have alternate access to their plant through the adjacent Bayou Segnette State Park. He further testified that during Tropical Storm Frances, tides were five feet above sea level and this in itself would have flooded Hontex but he did not know to what degree. He stated that there were no pumps that could have protected Hontex because there was no place to pump the water.

Robert Utley, the city superintendent for the City of Westwego, testified that Westwego councilmen Melvin Guidry received a phone call from Mitchell Robertson who lives near Hontex. Mr. Robertson stated that his house was being flooded due to water coming over the levee. Mr. Guidry spoke to Mr. Cahill of WJLD and sandbags were brought to the area. Mr. Utley testified that WJLD employees were busy with, flooding in other areas of the parish, so WJLD asked city employees to close the gap at Hontex. He testified that when he arrived at the scene, water was flowing under Mitchell Robertson’s house. The water was coming from a lift station that contained the Hontex pump. Water was also coming over the gap in the levee. Mr. Utley testified that water was- entering Hontex from the bayou and city employees assisted in placing sandbags along the banks. He stated that this stopped a “good bit of the water coming through.” Mr. Utley had no knowledge of the Hontex pump system. He testified that they were instructed on how to build the ring levee by Ron |sBesson, an assistant to Jefferson Parish Councilmen Lloyd Giardina. He stated that the decision to build the ring levee was either made by Besson, Guidry, or another Westwego councilmen, Gary Toups. He knew of no complaints from Hontex employees regarding closing the gap or building the ring levee.

Mr. Walter Maistri, director of emergency management for Jefferson Parish, testified by deposition that he was notified of a problem with the levee at the Hontex site and, the responsibility for dealing with it was given to WJLD and the City of Westwego. He knew of no Jefferson Parish employees who. were dispatched to work at the Hontex site. Mr. Maistri testified that Tropical Storm Francis caused a massive mountain of water to be pushed from the Gulf into the west bank of Jefferson Parish, resulting in extensive flooding throughout the west bank of the parish.

Ernest Alexander, a truck driver for WJLD, testified that he delivered one load of dirt to the Hontex site. The gap in the levee was closed and he dumped the dirt near an area where water was coming out of the ground. He testified that City of Westwego employees were building a ring levee around this area.

Ron Besson, administrative assistant to Councilman Giardina, testified that during Tropical Storm Frances, he drove around the west bank looking at the levees. He noticed a lot of activity near Hontex, so he investigated. He testified that the water was coming out of the bayou and they were trying to close the gap to prevent water from entering the city. He stated that there was a lot of water coming through a pipe or manhole cover and they were trying to correct this. Mr. Besson stated that there was no choice about closing the gap; it was either close the gap or flood the city. He testified that the parish played no part in the decision to close the gap. He had no knowledge about Hontex pump or drainage system. He stated that he may have ^answered general questions about the ring levee but had no specific recollection. He did not speak to any Hontex personnel, nor did he hear them speaking to anyone.

Westwego councilman Melvin Guidry testified that he was called by Hontex employee Martha Bourg who stated that they needed help at Hontex. When he arrived, the water was above the normal bank of Bayou Segnette and was in the plant. He estimated the water on the Hontex side of the levee to be 2 to 2H¿ feet deep. They added sandbags at the bank of the bayou but discontinued this effort when water started to go over the gap. He testified that Hontex employees were told to get all of their equipment out. This included trucks. Some trucks were moved, then there was one truck that came out the back of the plant as they dropped the load of mud on the roadway. Mr. Guidry testified that Mr. Utley told them to pull the truck on the levee to keep it out of the water. He testified that the city closed the gap at the direction of Mr. Cahill from WJLD. He stated that Mr. Cahill and Mr. Besson arrived on the scene together. They told him they did not have personnel to assist, but would send sand and plastic sheeting.

Mr. Guidry testified that Mr. Robertson, the homeowner whose land was adjacent to Hontex’s pump station, came to him and asked him to stop the water coming out of the green pipe onto his property. Mr. Guidry testified that Mr. Besson told him to build a ring levee around this pipe. He testified that he did not know he was “ringing” the entrance to the underground pump station for Hontex. He testified that no one from Hontex spoke to him about the ring levee and no one stated it would cause a problem.

Chip Cahill, president of WJLD, testified that gap was closed at Hontex before WJLD got involved. He stated that he would have made the decision to close the gap had he known there was danger to the city because of the rising flood water. He | ^testified the Mr. Spohrer was taking care of the Hontex area and he knew WJLD had sent materials to the site. He visited the site just to inspect. When he arrived, the gap was closed. He had no knowledge of the Hontex pump or the ring levee. He did not think a WJLB employee authorized the building of the ring levee. Mr. Cahill testified that there is another road to access the Hontex property.

Garrison Toups, a Westwego councilman, testified that when he arrived at Hontex, “they were already under water.” Hontex was pulling trucks on the levee. He estimated the water on the Hontex property to be waist deep. He went to the Bayou Segnette pumping station, located adjacent to the Hontex property, to sandbag the pump station to protect it from the rising water. He saw the Hontex pump station overflowing and testified that he saw people beginning to construct a ring levee.

In opposition to the defendants motions for summary judgment, Hontex argues that the water from the bayou never rose to the level of the gap in the levee. Hon-tex contends that the defendants’ act of filling the gap in the levee and blocking the entrance to their plant, prohibited them from being able to bring in additional equipment to protect their frozen products. Hontex further argues that the parish issued permits for their special pumping station to drain the property and the defendants’ actions in ringing the pump station and rendering it inoperable causing the freezer to flood. Hontex contends there are questions of material fact as to each party’s role in the action taken at the Hontex site, and whether the actions of those parties were protected under R.S. 29:735 and 9:2798.1. Hontex further argues that there are material issues of fact as to whether defendants’ actions were malicious and wilful and whether this conduct caused their damages.

In supports of its position, Hontex attached the affidavits of Frederick Yang and David Lai. Mr. Yang, general manager of Hontex, attested that the water was seeping [^through at the bayou but the pumps were easily able to handle this water prior to the gap being closed and the road being blocked off. He stated that he and Mr. Lai asked officials not to block the road, but they did so prior to allowing Lai to remove a truck from the property. Mr. Yang stated that he told employees and officials that the ring levee would cause the plant to be flooded thereby threatening the freezers and damaging the contents. Mr. Yang stated that the combination of defendants’ actions caused the freezers to defrost causing the loss of millions of dollars of seafood. He further stated that had defendants not taken this action, Hon-tex would not have suffered these losses. He stated that at no time did Bayou Seg-nette rise over the levee between Hontex and the bayou.

David Lai, plant manager of Hontex testified that he was in charge of work crews preparing for rising water. They filled sandbags to shore the levee between Hon-tex and the bayou. Although there was standing water on Hontex grounds, the pumps were draining it. Mr. Lai attested that when the road was blocked, the water level was well below the top of the levee. He protested the dumping of sand on the road and as he headed toward the exit to remove a large truck on the property, mud was dumped blocking his exit. Mr. Lai stated that a neighbor reported that water was occasionally bubbling out of an overflow line that was part of Hontex pumping system. Officials wanted to dump mud there, and Mr. Lai stated that he explained that this pumping station was essential to keep their property drained and to protect millions of dollars worth of seafood. The defendants responded that they had to protect the city and he explained the situation again. One to two hours after the ring levee was constructed, the pumps were flooded out and there was rising water in the plant. Mr. Lai stated if the road had not been blocked carbon dioxide could have been pumped into the freezers. He further stated that if the pumps had not flooded, the 11 ¿freezers would have continued to work. Mr. Lai concluded that defendants’ employees ignored this information and acted in a reckless manner.

In opposition to defendants’ motions for summary judgment, D.R.S. argues there are issues of material fact as to who decided to close the gap and build the ring levee. They contend there is an issue of fact as to whether defendants’ actions were willful and intentional misconduct because they knew Hontex would flood as a result of their actions. They argue that there is a material issue of fact as to whether the defendants’ actions constituted a taking. Finally, D.R.S. argues there is an issue of fact as to whether the defendants are constitutionally bound to compensate them for taking and damaging their property. They contend the cost of protection should be borne by the public in general not just the individual whose property has been sacrificed.

In her Reasons for Judgment, the trial judge stated the decision to block the roadway and build a levee around the pumping station were discretionary, tactical decisions taken to protect the citizens of Westwego from the threat of a flood. She found that these decisions were within the realm of discretionary functions grounded in social, economic, and public policy, and concluded each defendant was immune from liability under La. R.S. 9:2798.1. The trial court further found that the defendants were immune from liability for any emergency preparedness activities under La. R.S. 29:735. The trial court acknowledged that these statutes do not offer immunity for willful misconduct and found that there was no evidence of such conduct. Finally, the trial court stated:

Hence, this Court found that the state nor its political subdivisions owe compensation for property taken or damaged during an emergency when engaged in any emergency preparedness activities under La. Const. Art. I[sec] 4, except in cases of willful misconduct.

|13We agree that under La. R.S. 9:2798.1, the defendants are immune for acts of negligence for discretionary acts, and that the defendants have immunity for negligent acts taken to prepare for an emergency under La. R.S. 29:735. We further agree that there is no indication of willful misconduct on the part of the defendants. We do not think that the statements made by Mr. Yang and Mr. Lai in their affidavits amount to willful misconduct.

However, the trial court’s position that immunity extends to taking of property is incorrect. The statutes granting immunity for discretionary acts and acts taken to prepare for an emergency do not override Art. 1 § 4 of the State constitution that provides for just compensation when private property is taken. Plaintiffs claim that the blocking of the gap in the levee and building a ring levee around the Hontex pump station constitutes a taking. Since we have determined that immunity does not extend to a taking we must decide whether the actions of defendants constitutes a taking.

This Court has previously held that a decision to raise the level of an existing levee is not a taking and is within the authority of WJLD. See Elmer v. West Jefferson Levee Dist., 01-249 (La.App. 5 Cir.), 803 So.2d 229. The driveway entrance or gap area of the levee in this case had been routinely closed during past high water periods. We reiterate our prior holding, applicable here, that the raising of an existing levee is not a taking.

Regarding the ring levee, plaintiffs contend that if their discharge pumps had been allowed to operate the flooding would have been controlled and no loss of property would have occurred.

While the defendants dispute amongst themselves who directed the construction of the ring levee, the defendants collectively take the position that the temporary ring levee built with sand bags around Hontex’s pump station was necessary because flood h ¿water from outside the levee system was entering the City of Westwego through the pump station, thereby compromising the integrity of the flood protection system. The facts as set forth in the various depositions clearly establish that restricting the water that was being discharged from Hontex’s pumps caused the pumps to fail. Hontex’s pumps became inoperable because water from outside the levee was being released through an overflow line in Hontex’s pump station inside the levee. This water was contained by the ring levee.

Hontex claims that the defendants caused its pumps to fail thereby creating damage to property. Hontex asserts that the purpose of their permitted pump station was to transfer waste water from their shrimp processing plant to the Mississippi River. The undisputed facts establish that the reason the ring levee was built was due to a breach in the flood protection system caused by an overflow line in Hontex’s pump station that should not have been discharging water from outside the levee inside the levee. This breach in the flood protection system was corrected with a temporary sand bag ring levee. This was not a legal taking, which would entitle plaintiffs to damages. The construction of the temporary ring levee was not an action taken for the public good that deprived Hontex of some right to property or use of property. Rather, the building of the temporary ring levee was an action taken to protect the public due to a defective design or defective function of Hontex’s water discharge system.

For the foregoing reasons, the judgment of trial court granting summary judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: | j HARRISON, Judge Pro Tempore.

license: Public Domain

text:
    David HARRINGTON, et ux, Plaintiffs-Appellants, v. GLENWOOD REGIONAL MEDICAL CENTER and Lifeshare Blood Centers, Defendants-Appellees.
    No. 36,556-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Nelson, Hammons & Self, by John L. Hammons, Cornell R. Flournoy, Shreveport, for Plaintiffs-Appellants.
    Watson, Blanche, Wilson & Posner, by Peter T. Dazzio, Chris J. LeBlanc, Baton Rouge, for Defendanb-Appellee, Glenwood Regional Medical Center.
    Cook, Yancey, King & Galloway, by Cynthia C. Anderson, Shreveport, for Defendant-Appellee, Lifeshare Blood Centers.
    Before GASKINS, DREW and HARRISON (Pro Tempore), JJ.
   | j HARRISON, Judge Pro Tempore.

The plaintiffs, David and Becky Her-rington, appeal a judgment which effectively dismissed their tort suit as abandoned under La. C.C.P. art. 561. For the reasons expressed, we reverse and remand.

Procedural background

According to the petition, in 1978 or 1979 David Herrington (“David”) was hospitalized at Glenwood Regional Medical Center in West Monroe; he received a transfusion of one or more units of blood, provided by Life Share Blood Centers and transfused by Glenwood employees. In August 1997, David was diagnosed with Hepatitis C. Alleging that he had no other risk factors for this disease than the blood transfusion, he and his wife filed the instant suit against Glenwood, Life Share and the Attorney General of Louisiana on July 30, 1998. They sought general damages, medical expenses, loss of earning capacity, and loss of consortium.

The record contains no other pleadings until over three years later, on September 6, 2001, when the Herringtons filed interrogatories propounded to Glenwood and Life Share. On October 11, 2001, Glen-wood filed dilatory and peremptory exceptions, with a brief in support. The Her-ringtons filed a brief in opposition, but the court never ruled on the exceptions.

Life Share filed the instant ex parte motion to dismiss the suit as abandoned on November 13, 2001. It alleged that the Herringtons had taken no step in the prosecution of the suit for three years after they filed the petition. The district court rendered judgment dismissing “all claims and | ^demands in this lawsuit” without prejudice, as of July 30, 2001.

The Herringtons filed a motion to set aside the dismissal. In support, they showed that despite the absence of official filings in the record, there had been activity between the parties showing that the Herringtons did not intend to abandon their suit:

(1) On August 19, 1998, three weeks after suit was filed, counsel for Life Share asked counsel for the Herringtons, by letter, for an extension of time in which to file an answer. The Herringtons’ counsel agreed, granting an open-ended extension. On September 9, counsel for Glenwood also asked for an open-ended extension of time in which to answer, and by letter requested a 15 day notice before an answer would be “required.” Again, the Herringtons’ counsel agreed, giving Glen-wood an open-ended extension.

(2) Life Share’s letter of August 19, 1998 also asked David to sign a release of medical records. On October 27, his counsel mailed the signed release to Life Share’s counsel. Several months later, in February 1999, the Herringtons’ counsel wrote to ask if Life Share had ever obtained any records. On February 18, 1999, counsel for Life Share replied that it had, but according to the records David received no blood transfusions at Glen-wood. She asked counsel to dismiss all claims against Life Share.

After a hearing at which only argument was received, the court denied the motion to set aside the judgment of dismissal without reasons. The Herringtons have appealed.

13Discussion

The abandonment of actions is regulated by La. C.C.P. art. 561, which provides, in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years * * *.
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed a step in the prosecution or defense of an action. * * *

The Herringtons urge art. 561 must be liberally construed in favor of maintaining a plaintiffs suit. Clark v. State Farm, 00-3010 (La.5/15/01), 785 So.2d 779. They contend that less than three years intervened between the date that they provided a medical release in compliance with Life Share’s request (October 27, 1998), and the date that they propounded interrogatories to both defendants (September 6, 2001), so the three-year period of art. 561 did not elapse. They also contend that both defendants took actions “inconsistent with an intent to treat the case as abandoned,” a situation which the Supreme Court recognized as an exception to art. 561 in Clark v. State Farm, supra.

Life Share and Glenwood both argue that Life Share’s request for David to execute a medical release on August 19, 1998, was not formal 14diseovery authorized by the code. We disagree. The code expressly provides for this type of discovery:

Art. 1465.1. Requests for release of medical records
A. Any party may serve upon the plaintiff or upon any other party whose medical records are relevant to an issue in the case a request that the plaintiff or other authorized person sign a medical records release authorizing the health care provider to release to the requesting party the medical records of the party whose medical condition is at issue. The release shall be directed to a specific health care provider, shall authorize the release of medical records only, and shall state that the release does not authorize verbal communications by the health care provider to the requesting party.
B. The party upon whom the request is served, within fifteen days after service of the request, shall provide to the requesting party releases signed by the plaintiff or other authorized person unless the request is objected to, in which event the reasons for the objection shall be stated. The party requesting the release of medical records may move for an order under Article 1469 with respect to any objection or other failure to respond to the request.
C. The party requesting the medical records shall provide to the party whose medical records are being sought or to his attorney, if he is represented by an attorney, a copy of the request directed to the health care provider, which copy shall be provided contemporaneously with the request directed to the health care provider.
D. The party requesting the medical records shall provide to the party whose medical records are being sought or to his attorney, within seven days of receipt, a copy of all documents obtained by the requesting party pursuant to the release.

When counsel for Life Share apparently had not complied with the requirement of subsection D by providing a copy of the medical records obtained, counsel for the Herringtons made a request for these on February 19, 1999. Because this was discovery in accord with art. 1465.1, it is distinguished from the mere correspondence that was held not to be formal discovery in Naccari v. Namer, 01-2410 (La. App. 4 Cir. 2/6/02), 809 So.2d 1157, cited by Life Share. We conclude that a request properly made under art. 1465.1 is formal discovery as authorized by the code.

We are cognizant that art. 561 B requires discovery to be served on all parties in order to qualify as a step in the prosecution. While the record does not show that Life Share’s request for a medical release was served on Glenwood, it is obvious that Glenwood was aware of this because it ultimately sent David’s records to Life Share. Even if the discovery concerned only Life Share and the Herringtons, interruption as to one defendant also interrupts it as to the others. James v. Formosa Plastics Corp., 01-2056 (La.4/3/02), 813 So.2d 335.

On this point we distinguish the case cited by Glenwood, Benjamin-Jenkins v. Lawson, 00-0958 (La.App. 4 Cir. 3/7/01), 781 So.2d 893, writ denied, 01-1546 (La.9/14/01), 796 So.2d 681. In that case the plaintiff attempted to halt the abandonment period by sending faulty discovery requests. Such is not the case here, as Life Share initiated the request and David complied under art. 1465.1, in the obvious effort to move the case to trial. Given the liberal construction of art. 561, we find that these discovery matters were steps in the defense and prosecution of the case. Less than three years elapsed before the Herringtons filed interrogatories on September 6, 2001.

We also find that under the circumstances of this case, both defendants took actions inconsistent with an intent to treat the case as abandoned. After the delay for answering had expired, both Life Share and Glenwood wrote the Herring-tons’ counsel seeking extensions of time to file | (¡answers; counsel agreed to give them open-ended extensions. In the analogous situation of default judgments, the law is very well settled that when the defendant asks for an extension of time to answer, the plaintiff may not take a default judgment against him. Russell v. Illinois Central Gulf R., 96-2649 (La.1/10/97), 686 So.2d 817; Conerly v. Jefferson, 01-2220 (La.App. 4 Cir. 5/29/02), 820 So.2d 1173. The defendants’ conduct in seeking and obtaining open-ended extensions of time to answer is also inconsistent with declaring the case abandoned.

Conclusion

The judgment denying the Herringtons’ motion to set aside the judgment of dismissal is therefore reversed, and the judgment of dismissal signed on November 13, 2001 is vacated. The matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

      . In the initial petition, the plaintiffs' name is misspelled as "Harrington.”

      . She asserted that according to the records, David Herrington was not hospitalized at Glenwood in 1978 or 1979, the years mentioned in the petition; however, he was hospitalized in 1976 and 1983, and on neither occasion did he receive a blood transfusion.


author: J^THOMAS F. DALEY, Judge.

text:
    Mary L. RUBIN and Richard L. Rubin v. WESTPORT INSURANCE CORPORATION, et al.
    No. 02-CA-643.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 16, 2003.
    Tracey L. Rannals, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, LA, for Plaintiffs/Appellees.
    Michael P. Mentz, Alayne R. Concoran, Hailey, McNamara, Hall, Larmann & Pa-pale, L.L.P., Metairie, LA, for Appellant/Defendant, Westport Insurance Company.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and MARION F. EDWARDS.
   J^THOMAS F. DALEY, Judge.

The defendant, Westport Insurance Company, has appealed the trial court’s denial of its Motion for Summary Judgment. For the reasons that follow, we dismiss this appeal and remand for further proceedings.

Plaintiffs, Mary and Richard Rubin, filed a legal malpractice lawsuit against Ronald J. Savoie, the law firm Jackson, Jackson, and Wyble, L.L.C., and their insurer Westport Insurance Company (Westport). Westport and/or its predecessor, Coregis Insurance Company issued a number of policies to the law firm from 1995 to 2000. Westport was granted summary judgment with regard to policy number LAL-243764-1 with policy dates of 5/20/98 to 5/20/99. Westport later moved for summary judgment in regard to policy number LAL-241411-5 claiming there is no coverage under this policy. The trial court denied Westport’s Motion for Summary Judgment and certified that judgment as final.

|3Mr. Savoie filed a Motion to Dismiss this appeal claiming this court had no subject matter jurisdiction in this matter because an identical lawsuit was dismissed with prejudice in Orleans Parish, making the present lawsuit moot. By order of this Court, Westport filed a response to Sa-voie’s Motion to Dismiss claiming the underlying claim was not moot because the Orleans Parish suit had not been decided on the merits. This Court denied Savoie’s Motion to Dismiss on those grounds.

However, Code of Civil Procedure Article 968 provides that “An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” Code of Civil Procedure Article 1915 provides for the certification of partial final judgments, however, article 1915 does not supercede article 968. The certification of the denial of West-port’s Motion for Summary Judgnent by the trial court did not convert a non-appealable judgment into an appealable judgment. See Short v. Ochello, 01-1358 (La. App. 5 Cir. 2/26/02), 811 So.2d 1009. The judgment denying Westport’s Motion for Summary Judgment is not appealable, and therefore, this appeal is dismissed.

Review of this judgement is properly taken under this court’s supervisory jurisdiction. However, this court does not convert appeals into Writ Applications. See Meany v. Meany, 96-585 (La.App. 5 Cir. 11/26/96), 685 So.2d 356. Therefore, the parties are given thirty days from the date of this action to file, if they desire, an Application for Writs that fully complies with Rule 4, Uniform Rules — Courts of Appeal. A copy of this opinion must be included in the Writ Application for compliance with Rule 4-3, Uniform Rules— Courts of Appeal.

APPEAL DISMISSED; REMANDED.


author: hAMY, Judge. h SAUNDERS, Judge,

text:
    Carl AYCOCK v. ENSCO OFFSHORE COMPANY.
    No. 02-0853.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 18, 2002.

      Burnice Gerald Weeks, Weeks, Kava-naugh & Rendeiro, New Orleans, LA, for Plaintiff/Appellant, Carl Aycock.
    Ward LaFleur, Mahtook & LaFleur, Lafayette, LA, for Defendant/Appellee Ensco Offshore Company.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD and MARC T. AMY, Judges.
   hAMY, Judge.

The plaintiff filed suit under the Jones Act and general maritime law, seeking recovery for injuries sustained while working aboard an oil rig. A jury found that the defendant offshore company was negligent and that the vessel was unseaworthy. However, the jury also found the plaintiff negligent and the plaintiffs negligence to be a legal cause of the injuries sustained. The plaintiff was apportioned ninety percent of the fault. General damages, past lost earnings and future loss of earnings were awarded. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Carl Aycock, was an employee of ENSCO Offshore Company, working as a floorhand, at the time of the September 1997 work-related accident at issue. Mr. Aycock filed suit alleging that he sustained serious lower back injuries when he was struck from the rear by the lead tongs he was operating. He contends that the accident occurred after he released the tongs to assist a coworker unlatch backup tongs that had become jammed. He argues that ENSCO is responsible for the injuries under general maritime principles and the Jones Act due to what he contends were improperly hung tongs, which resulted in excessive swing, and a coworker not seeing what he should have seen and failing to prevent the tongs from striking him in the back. ENSCO denied responsibility, contending that the tongs causing the accident are designed to “swing” so that they may be operated by a single employee and that the operator is responsible for their control. At the time of trial, Mr. Aycock had not returned to work. He had undergone a three-level anterior lumbar fusion. Mr. Aycock’s medical expenses were provided by ENSCO.

The matter proceeded to trial, with a jury finding ENSCO liable due to Jones Act negligence and general maritime principles of unseaworthiness. ENSCO’s 12liability was allocated equally between these two theories. The jury also found the plaintiff comparatively negligent in causing his own injuries. Ninety percent of the fault was apportioned to the plaintiff, the remaining ten percent was apportioned to ENSCO. The jury awarded the following damages: $150,000 for past physical and mental pain and suffering; $50,000 for future physical and mental pain and suffering; $110,000 for loss of earnings to trial; and $33,000 for future loss of earnings. No award was made for future medical expenses.

The plaintiff filed a “Motion for Judgment Not Withstanding the Verdict, New Trial, and/or Additur.” In particular, the plaintiff argued that the $33,000 awarded by the jury for loss of future earnings was less than the lowest reasonable amount that could have been awarded and that the ninety percent apportionment of fault for his actions/inactions was excessive. The motion was denied.

The plaintiff appeals, assigning the following as error:

1. The jury’s finding the appellant 90% at fault is manifestly erroneous and not supported by the evidence presented at trial.
2. The trial court erred in denying the appellant’s motion for new trial and judgment notwithstanding the verdict.
3. The jury erred in awarding the appellant $33,000 for loss of future earnings.
4. The trial court erred in denying the appellant’s motion for additur.

Discussion

Allocation of Fault

The plaintiff sought recovery under general maritime principles of unseaworthiness and negligence under the Jones Act. On appeal, he questions both the jury’s determination that he was comparatively negligent and that, if negligent, his conduct was deserving of 90% of the fault for the accident. His Jones Act and | aunseaworthiness claims are premised on his allegation that his coworker, roustabout Thomas Macheck, was responsible for the spinner wrench at the time of the accident and that he should have seen the swinging tongs and signaled a warning so as to prevent the blow. He also contends that the tongs were improperly hung so as to create excessive swing when released. He contends that in light of the jury’s determination that ENSCO was responsible under both theories, equally apportioned between the two, that his actions in releasing the lead tongs to assist the rear tong operator should not be viewed as negligent. Accordingly, he asserts error in the finding of fault, the apportionment of fault, and in the denial of the JNOV.

The Jones Act, 46 U.S.CApp. § 688(a), provides:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

In Foster v. Destin Trading Corp., 96-803 (La.5/30/97); 700 So.2d 199 (on rehearing), the Louisiana Supreme Court noted that, although an employer’s liability may extend to all personal injuries arising during a seaman’s employment, proof of negligence is essential. Referencing the applicable federal jurisprudence, the supreme court explained:

Such negligence may arise in many ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-21, at 312 (2d ed.1994). The duty of care owed by an Lemployer under the Jones Act is that of ordinary prudence, namely the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335-36 (5th Cir.1997). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries.

Id. at p. 3-4; 208.

Additionally, an owner of a vessel has an absolute duty, one not requiring negligence, to provide a seaworthy vessel. Vendetto v. Sonat Offshore Drilling Co., 97-3103 (La.1/20/99); 725 So.2d 474. The Louisiana Supreme Court has explained as follows with regard to this theory of recovery:

To state a cause of action for unseaworthiness, the plaintiff must allege an injury “caused by a defective condition of the ship, its equipment or appurtenances .... Members of the crew of a vessel are also warranted as seaworthy, and there may be liability for ... negligent orders, or for utilizing an understaffed or ill-trained crew.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-25, at 333-34 (2d Ed.1994). Whether a vessel is unseaworthy is a factual question to be decided on a case-by-case basis. Id.
Although the duty of seaworthiness is absolute and does not require negligence, the mere fact an accident occurred does not establish unseaworthiness. The plaintiff bears the burden of proving that “the unseaworthy condition played a substantial part in bringing about or actuahy causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Foster v. Destin Trading Corp., 96-803, p. 7 (La.10/21/97); 700 So.2d 199, 209 (on reh’g)(quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir.1988)).

Id. at p. 14-15; 481-82.

Again, the jury found the defendant liable under both of the above theories. ENSCO’s fault was apportioned equally under theories of neghgence and unseaworthiness. As ENSCO has not filed an appeal or an answer, the jury’s finding in this regard is final. For purposes of our review, it is of no moment whether the jury found that the tongs carried excessive swing or that Mr. Ay-cock’s coworker failed to signal him that the tongs were swinging toward his back. Under both theories of | srecovery, the jury was required to consider the fault of Mr. Aycock. They found him to be negligent, assessing him with 90% of the fault. It is this determination that is appealed. While federal law is applicable to substantive issues in unseaworthiness and Jones Act cases, which is obvious from the federal jurisprudence relied on by the Louisiana Supreme Court in the previous excerpts, we conduct our review under the applicable state law standard of review, that of manifest error. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96); 676 So.2d 89.

In its original opinion in Foster, 96-803, p. 8-9; 700 So.2d at 204, the Louisiana Supreme Court explained as follows with regard to comparative negligence in unseaworthiness claims and Jones Act matters:

Comparative neghgence applies to both unseaworthy claims as well as Jones Act neghgence actions. Cormier, [640 So.2d] at 556. To prove comparative neghgence on the part of the plaintiff, the defendant has to show that the plaintiff was contributorily negligent and that such neghgence was a proximate cause of the resulting injury. Miles v. Melrose, 882 F.2d 976 (5th Cir.1989). The effect of finding neghgence on the part of a seaman seeking recovery in a seaworthiness action or Jones Act claim is only to reduce damages proportionately, but not to bar recovery. A seaman’s neghgence will not defeat his claim under the Jones Act and general maritime law but may be considered as comparative neghgence to mitigate damages in proportion to the degree of his negligence. Portier v. Texaco, Inc., 426 So.2d 623 (La.App.1982), writ denied 433 So.2d 165 (La.1983); Scott v. Fluor Ocean Services, Inc., 501 F.2d 983 (1974); Griffin v. LeCompte, supra, 471 So.2d 1382 at 1389 (La.1985). Contributory neghgence, however gross, does not bar recovery but only mitigates damages. Johnson v. Offshore Exp., Inc., 845 F.2d 1347, (5th Cir.1988), rehearing denied, cert. denied 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (U.S.La.,1988).

Our review of the record indicates that the jury’s determination of liability and the ninety percent apportionment of fault to the plaintiff is supported by the evidence, even at the ninety percent level. Certainly the plaintiff presented evidence indicating that the lead tongs were hung in such a way as to cause them to have a certain degree of “swing” when released. However, the jury was not required to accept the plaintiffs | ^contention that this swing was sufficiently extreme or unusual to require a larger apportionment of fault to the defendant. Certainly, also, there was testimony indicating that a coworker, such as Thomas Macheck, might be expected to signal the lead tong operator if the tongs were swinging toward the operator’s back. This evidence is present and is accepted as part of the fault found on the part of ENSCO. However, the defendant also presented testimony indicating that, even faced with these conditions, the lead tong operator was primarily responsible for his own safety.

With regard to the amount of swing, the plaintiffs expert in the field of petroleum engineering, Calvin Charles Barnhill, explained that one of the plaintiffs theories of the accident was that the positioning of the tongs on the rig created excessive swing. However, Mr. Barnhill also stated as follows upon questioning:

Q And you didn’t make a comparison of this rig with any other rig in the ENSCO fleet, nor any type of comparison with this rig’s — the amount of swing on those tongs with any other rig in the Gulf of Mexico?
A That’s true, for purposes of this case. Now, I’ve worked on quite a few other rigs. And I have seen tongs hung in different configurations. So you know, to say that there is one place you always hang the tongs, that’s not true. It depends on the derrick and how they’re set.
Q Every derrick is going to be a little different, right?
A Correct.
Q Every tong is going to swing slightly differently?
A Yes, in my experience, they will.
Q Surely. And it’s up to a good floor hand to be able to — after a little experience, use it a little while, to be able to know exactly how much tong' — how much swing is going to be in that tong, how much force he can give it and how to handle it?
A Yes, the floor hand should make that determination.

|7Even Scotty Eaves, the crew’s driller, whose testimony was presented for the proposition that the tongs carried a great deal of excessive swing, indicated that it was ultimately the lead tong operator’s responsibility to ensure that the tongs were out of the way.

Further, the jury was aware from Mr. Aycock’s own testimony, that he had been working for ENSCO for approximately six months prior to the accident and had worked on the rig prior to it being moved offshore; sufficient evidence to find that he was familiar with its operations. He also explained that, although the spinner wrench operator would generally help him “watch” his tongs, he was responsible, as lead tong operator to “push them out of the way.” The jury heard the following colloquy between defense counsel and the plaintiff:

Q And you don’t argue with the fact that you’re responsible for your own tongs, aren’t you?
A Well, I was helping a friend and I figured a friend would help me watch my back.
Q I understand. So you think it’s okay to violate that principle rule that we just talked about because the backups got hung up?
A We was in a hurry. And it’s just — -I was just trying to help him so we could get out [of] the way.

IsBenny Wayne Tullía, an Offshore Installation Manager for ENSCO, who described himself as the designated man in charge of the shift explained to the jury how the tongs were hung aboard the rig. He explained that if the lead tongs were not involved in an operation, they needed to be out of the way. He explained that they could be hooked to a post or released in a neutral position. This latter option, however, required that the operator watch them to ensure that there was no more swing. He explained that, after this point, the operator could safely turn his back on the tongs and they would not swing toward him.

ENSCO also presented testimony from Mr. Aycock’s coworkers, who each testified regarding the lead tong operator’s ultimate responsibility for the tongs. Michael Barnes explained that he was working as a shaker hand aboard Rig 60 in September 1997, and that he had operated both the lead and the backup tongs aboard the rig. He explained that every set of tongs he had seen had been hung the same way. Mr. Barnes stated that, to operate the tongs, “you want to have some play.” He affirmed that this “play” enabled the operator to walk them forward and back. Mr. Barnes also explained that if the operator unlatches the tongs and lets go of them, “[tjhey’re kind of just going to drift back until they get to a certain point and they’ll drift back to you.” He confirmed that they will eventually come to rest in the same place where they are hung. Mr. Barnes also explained that the tongs could be tied, so that they did not move. He testified as to the procedure when the rear tongs become jammed, as they did in this instance. He explained:

Q If it’s the backup tongs that are hanging, the lead tong operator can unlatch his tongs, get them out of the way—
A Get them out of the way.
Q —And then come help you, right?
| qA He has to make sure them tongs are not swinging, make sure they’re still or hang them off.
Q One or the two?
A One or the two.
Q Now, is there any particular hurry that the lead tong operator would be in if, say, the backup tongs had somehow got jammed?
A Well, it’s just — it all depends on who you’re working for, how big a hurry they’re in. Some drillers want you to hurry; some don’t. Most of the time, there ain’t nobody rushing you. You take them off and you stop them. You make sure they’re stopped or — you stick your foot out there and stop them with your foot or anything.
Q That’s the primary thing you have to do no matter how fast you’re going? A That’s right. Always pay attention.

At the time of the plaintiffs accident, Mr. Barnes was operating the backup tongs, however, he did not witness the lead tongs striking Mr. Aycock in the back. Mr. Barnes stated that, before Mr. Aycock came to assist him, “he should have turned around or stopped the tongs.” He further explained: “You never turn your back on them. Once you unlatch them, you turn your back and face them, you stop them and make sure they’re not coming back toward you.” Finally, the jury heard defense counsel inquire: “If you get hit by your own tongs, that’s your own fault, isn’t it?” Mr. Barnes responded: “Yes, sir.”

ENSCO also presented the testimony of Quiton Wayne Gray, who explained that he was working as either an assistant driller or a roughneck in September 1997. Mr. Gray stated that he had operated the lead tongs on Rig 60. He denied having had a problem working them and denied that he had a problem with their degree of swing. He confirmed that, when working on the floor, he always made sure that he did not turn his back on the tongs. Finally, Thomas Macheck, the coworker operating the Imspinner wrench at the time of the accident, also testified regarding the accident. He explained that the incident occurred in the “blink of an eye” and that he did not have time to warn Mr. Aycock. He further testified that he had previously operated the lead tongs and that he had not had any problems with them. He explained that he had never had any problem moving them to their natural hanging position or tying them to their post.

On review, we conclude that the entirety of the evidence permitted the jury to conclude, even in light of findings of unseaworthiness and negligence, that Mr. Ay-cock bore a substantial amount of the fault for the accident. The record is such that the jury could have found ENSCO responsible for tongs that carried slightly excessive swing, not the great swing described by Mr. Eaves. The jury could also have found that there was more that the crew could have done to prevent the accident. However, the record also permits the jury to conclude that, ultimately, Mr. Aycock was responsible for the lead tongs, and that he negligently failed to secure them before turning his back or ensure that they were not swinging toward him. While the record could have supported different views, those of the jury, both with regard to a finding of fault and the apportionment, are supported by the record. Finding no manifest error, we conclude that the assignment regarding plaintiffs fault, and apportionment thereof, is without merit. Similarly, the trial court did not err in denying the motion for JNOV.

| ^Damages

The plaintiff also questions the jury’s award of $33,000 for future loss of earnings. He contends that, due to physical impairment and disability, he cannot return to work earning the wages he earned as an employee of ENSCO. He points out that the physician who performed his surgery denied that he would be able to return to his heavy duty position at ENSCO. He contends that his damages far exceeded the figure awarded by the jury and that ENSCO presented no evidence refuting the testimony of his economist, Dr. Randy Rice. Dr. Rice supplied various figures based on an inability to return to work at all and being able to return to work at a minimum wage type of position. Although the plaintiff filed a motion for additur in this regard, the motion was denied. ENSCO contends there is no reversible error in the jury’s award, given the claimant’s history of positions that were significantly lower paying than his position with ENSCO, which paid approximately $33,000 per year. They contend that it was not error for the jury to have taken this into consideration.

In Culver v. Slater Boat Co., 122, F.2d 114 (5th Cir.1983), commonly referred to as Culver II, a four step analysis was set forth for use in determining future lost wages in maritime eases. The Fifth Circuit explained the process as: 1) Estimate the loss of work resulting from the accident; 2) Calculate the lost income stream; 3) Compute the total amount of damages; and 4) Discount the total amount to its present value. See also Fontenot v. Southwestern Offshore Corp., 00-1722 (La. App. 3 Cir. 6/6/01); 787 So.2d 588, writ denied, 01-1913 (La.10/12/01); 799 So.2d 504; Jenkins v. Kerr-McGee Corp., 613 So.2d 1097 (La.App. 3 Cir.), writs denied, 616 So.2d 701, 702 (La.1993).

The award for future loss of earnings made by the jury is not precise. However, it is reflective of evidence regarding Mr. Aycock’s wage earning ability. Dr. 112Watermeier, the orthopedic surgeon who performed Mr. Aycock’s back surgery, reported that by Mr. Aycock’s final visit on August 8, 2000, he was doing well and was able to do things around the house, but suffered from an occasional back or leg aching. Dr. Watermeier testified that he would expect Mr. Aycock to have progressive pain during the course of his life, but that he would not require further surgery. He explained that he had not released him from his care, but stated that he would assign a 20-25% disability due to Mr. Ay-cock’s surgery. He felt that Mr. Aycock could perform sedentary and light duty, restricted to an infrequent lifting of over fifty pounds. When asked about his ability to jump, climb, bend, and stoop, Dr. Wat-ermeier explained that he could occasionally perform these activities but not on a regular, repetitive basis. He felt that, although Mr. Aycock had not been released from his care, he could return to some form of job, within the restrictions set forth above. Dr. Watermeier testified that he would expect Mr. Aycock to reach maximum medical cure approximately two years after surgery.

The plaintiff contends that, even if released to return to some form of work, his educational limitations indicated that he would not be able to find work suited to his needs. In this regard, Dr. Rice explained that he calculated Mr. Aycock’s future loss of earnings based upon his earnings at ENSCO and calculated into the future, given various earnings. If Mr. Aycock could not return to work in any capacity, loss of earnings could have exceeded $375,000. If he were to return to work making minimum wage, Dr. Rice calculated his loss of earnings to be in excess of $245,000. These figures assumed that Mr. Aycock would continue to earn the salary he made while working for ENSCO, a position he held for approximately six months prior to the accident. He did not take into account previous tax returns reflecting previous jobs and lesser annual salaries.

|13ENSCO presented the testimony of Jennifer Palmer, a vocational rehabilitation counselor. She reviewed Mr. Aycock’s work history and medical reports, in order to evaluate positions for which he might be suited. She identified fourteen or fifteen employers in his past, noting that this type of work history identifies Mr. Aycock as someone who is able to find a job. She also felt that this history ruled out any findings of functional illiteracy, as contended by the plaintiff, as he would not have been able to perform in his previous jobs were that the case. She felt that Mr. Aycock would be most successful in returning to a position he held in his past. She identified the positions of short haul truck driving and long haul truck driving. She noted that Mr. Aycock testified that, when he was employed as a truck driver, he earned approximately twenty-five to thirty thousand dollars a year. Ms. Palmer affirmed that she believed these positions were within the restrictions set forth by Dr. Watermeier. She also felt that related positions, such as van driver, school bus driver, and forklift operator would also be appropriate, but not as high paying as truck driving. She also noted that federal and state programs were available if Mr. Aycock attempted to further his education.

Our review of the parties’ evidence reveals support for the jury’s decision that Dr. Rice’s calculations assuming Mr. Ay-cock’s earning capability as that at the time he was employed by ENSCO was not accurate of his “income stream” in general. This is true due to Mr. Aycock’s varied work history and his limited time on the ENSCO job, approximately six months. We do not find error in the jury’s consideration of this type of fact. See Fontenot, 00-1722; 787 So.2d 588 (wherein a panel of this court affirmed an award for future lost earnings based on an average wage rate when the plaintiffs oilfield salary reflected fluctuations in the oilfield employment market for the five years prior to injury). Neither do we find error in any [ ^consideration given to the testimony of ENSCO’s vocational rehabilitation counsel- or regarding her opinion that the plaintiff could return to work as a truck driver and do so within the restrictions set forth by Dr. Watermeier. Also, the jury heard from the plaintiff that his salary during the years he worked off and on as a truck driver was very near equivalent to that he earned in the oilfield. Finally, as the jury was aware of Dr. Watermeier’s testimony indicating that the plaintiff had not yet reached maximum medical cure, the figure awarded by the jury does not necessarily have to be viewed as a finding of future loss of earnings in perpetuity. Rather, the figure awarded is roughly equivalent to one year’s wages at ENSCO. The jury was free to conclude that this figure would compensate the plaintiff while he continued toward maximum medical cure and after that time, Mr. Aycock could return to work as a truck driver making roughly equivalent to wages earned in the oilfield.

Given the various scenarios supported by evidence or permissible inferences, we find no error in the award requiring reversal. We also find no error in the trial court’s denial of the additur.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the plaintiff, Carl Aycock.

AFFIRMED.

SAUNDERS, J., concurs and assigns written reasons.

WOODARD, J., dissents regarding the affirmation of the $38,000 award for loss of future earnings and agrees with the opinion in all other respects.

h SAUNDERS, Judge,

concurring.

While I concur in the opinion of the court in this case, I would more strongly emphasize the distinction between the facts of this case and the seemingly similar cases cited by the plaintiff and referred to in footnote 2 of the opinion, which resulted in a much greater percentage of fault apportioned to the vessel/employer. It is not clear from the record on what basis the jury found unseaworthiness and negligence on the part of ENSCO. Although the award of ninety percent of the fault in this accident seems high in light of a finding of Jones Act negligence and general maritime law unseaworthiness, that apportionment is more clearly warranted in light of the fact that under the circumstances of this case, there can be only a very minor amount of unseaworthiness and negligence found on the part of ENSCO.

Although Parker v. Delta Well Surveyors, Inc., 2000-1121 (La.App 4 Cir. 5/2/01); 791 So.2d 717, and Domonter v. C.F. Bean Corporation, 99-1204 (La.App. 5 Cir. 4/25/00); 761 So.2d 629, also involve cases with clear acts of negligence on the part of the employee, in both cases the employee was apportioned only forty and thirty percent of the fault, respectively. In Parker, as in the present case, the negligence on the part of the plaintiff was clear and excessive, yet the district court assigned him only forty percent of the fault. It found that the negligence of the vessel |2in operating with a leaky hydraulic line, despite earlier notification of the hazardous condition by another employee, was clearly the reason for the plaintiffs performing the negligent act. In Domonter, the failure of the plaintiff to use the provided safety handrail for stability caused him to trip while descending a staircase. The improperly wrapped step, however, was also a direct cause of the plaintiffs injury. As a result, the plaintiff was found only thirty percent at fault, despite the fact that if he had been using the handrail provided, he would likely not have been injured. In both of these cases, there were conditions which indicated clear negligence on the part of the vessel.

In the present case, there is no clearly apparent condition indicating negligence or unseaworthiness on the part of ENSCO. There was merely testimony that, while the hanging arrangement of the tongs may have caused excessive swing, there was no proof of such excessive swing and there was no clear evidence that such a hanging arrangement was negligent. While it was not erroneous for the jury to have found such negligence and unseaworthiness, the apportionment of fault, which appears so extreme at first glance in light of seemingly analogous case law, makes more sense in light of the testimony and evidence found in the record if this case. Therefore, I concur with the majority opinion.

      . The following colloquy is contained in the record:
      Q Now, isn't it the job responsibility of a tong operator to make sure before he turns his back on those tongs they are safely out of the way?
      A That’s correct.
      Q And in fact, Mr. Aycock was one of your better guys. He normally made sure that they were out of the way?
      A Normally, he did. Now, I—
      Q Why he didn't on this occasion, you have no answer?
      A I have no answer on that.

      . We note that the plaintiff directs this court to two cases in which the plaintiff seaman was apportioned a far lesser percentage of fault. See Parker v. Delta Well Surveyors, Inc., 00-1121 (La.App. 4 Cir. 5/2/01); 791 So.2d 717; Domonter v. C.F. Bean Corp., 99-1204 (La.App. 5 Cir. 4/25/00); 761 So.2d 629, writ denied, 00-1872 (La.9/29/00); 770 So.2d 354. He contends that the allocation of fault related to his conduct is manifestly erroneous when compared to that of the plaintiffs in the above two cases. While we have carefully considered the plaintiff's argument in light of these case, we observe that the lesser percentages apportioned to the seamen in Parker and Domonter were fixed by the juries in those cases. Both were affirmed on appeal.


author: |, STEWART, J.

text:
    Gwendolyn BELT and Patsy Long, individually and on Behalf of the Estate of Rosemary B. Robinson, Plaintiffs-Appellants v. Dr. Bruce WHEELER, Sterlington Memorial Hospital, Dr. Edward Coleman, and Glenwood Regional Medical Center, Defendants-Appellees.
    No. 36,585-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2002.
    Rehearing Denied Jan. 23, 2003.

      Silvestri & Massicot, by John Paul Mas-sicot, Frank A. Silvestri, New Orleans, for Appellants Gwendolyn Belt and Patsy Long.
    Roby & Smith, by Clarence Roby, Jr., New Orleans, Intervenor Appellee In Proper Person.
    Crawford & Anzelmo, by Donald J. An-zelmo, Monroe, for Appellee Bruce Wheeler, M.D.
    McLeod Verlander, by David E. Verlan-der, III, Monroe, for Appellee Edward Coleman, M.D.
    Watson, Blanche, Wilson, Posner, by Rene J. Pfefferle, Baton Rouge, for Appel-lee Glenwood Regional Medical Center.
    Nelson, Zentner, Sartor & Snellings, by David Hyland Nelson, for Appellee David Walsworth, M.D.
    Hudson, Potts & Bernstein, by Gordon L. James, Jesse D. McDonald, Monroe, for Appellee Robert C. Ewing, M.D.
    Before BROWN, WILLIAMS and STEWART, JJ.
   |, STEWART, J.

In this medical malpractice action, the trial court granted motions for summary judgment by the defendants, Dr. David Walsworth and Glenwood Regional Medical Center (“Glenwood”). The plaintiffs, Gwendolyn Belt and Patsy Long, appeal the summary judgments dismissing their claims against these two defendants. For the following reasons, we affirm the judgment in favor of Glenwood, but we reverse the summary judgment in favor of Dr. Walsworth and remand for further proceedings.

FACTS

This medical malpractice action arose from the death of the plaintiffs’ mother, Rosemary Robinson. Ms. Robinson died at the age of sixty-seven on May 29, 1992, as a result of multiple organ failure. It appears that Ms. Robinson’s death was precipitated by toxic epidermal necrosis, which will be referred to hereinafter as “TEN”. TEN is a rare condition which has a high mortality rate. It possibly results as an adverse reaction to certain drugs. TEN begins as a rash, progresses to bul-lous lesions, and results in sloughing of the skin which exposes the body to infections. Patients suffering from TEN are often treated in burn units.

Ms. Robinson had been a nursing home resident when she was admitted to Ster-lington Memorial Hospital on April 10, 1992. She was treated by Dr. Bruce Wheeler for complaints of fever and a rash. Dr. Wheeler transferred Ms. Robinson to Glenwood on April 30, 1992, for further testing. Ms. Robinson was admitted to Glenwood under the care of Dr. Edward Coleman. On the morning of May 6, 1992, Ms. Robinson exhibited symptoms of bullous skin lesions and sloughing of her skin. Dr. | ¡.Coleman consulted with Dr. Robert Ewing, an internal medicine specialist. Dr. Ewing suspected that Ms. Robinson might have developed TEN, and he consulted a dermatologist, Dr. David Walsworth. Dr. Walsworth performed a skin biopsy and concurred in the treatment being provided by Dr. Ewing. Ms. Robinson continued to be treated at Glenwood, which had no burn unit, until she was transferred to the burn unit at Louisiana State University Medical Center in Shreveport, (hereinafter “LSUMCS”), on May 12, 1992, where she later succumbed to her illness and died.

In their first petition for damages, the plaintiffs named Dr. Coleman, Dr. Wheeler, Sterlington Memorial Hospital, and Glenwood as defendants. The claims against Sterlington were eventually dismissed pursuant to an unopposed motion for summary judgment. A motion for summary judgment by Glenwood was denied by the trial court on March 14, 2000. The trial court concluded that whether Glenwood breached a duty in failing to transfer Ms. Robinson to a burn unit at an earlier date or failed to take actions a reasonable person would have taken under the circumstances were questions for the jury.

Thereafter, plaintiffs filed an amended petition to include Dr. Robert Ewing and Dr. David Walsworth as additional defendants. Both Dr. Wheeler and Dr. Wals-worth filed motions for summary judgment. In addition, Glenwood again filed a motion for summary judgment. The trial court denied Dr. Wheeler’s motion, but granted summary judgment in favor of Dr. Walsworth and Glenwood. At issue in the motions filed by Dr. 13Walsworth and Glen-wood was whether these parties breached the standard of care in failing to transfer or recommend transfer of Ms. Robinson to a burn unit at an earlier date.

In his motion for summary judgment, Dr. Walsworth argued that plaintiffs lacked expert testimony that he breached the standard of care. He asserted that he was only consulted for the purpose of performing a skin biopsy and that he did so and reported the findings to Dr. Ewing. Plaintiffs position was that the national standard of care for treatment of TEN requires that such patients be treated in a burn unit. According to plaintiffs, Dr. Walsworth should have recommended that Ms. Robinson be transferred to a burn unit for treatment and his failure to do so was a breach of the standard of care.

Glenwood, too, argued that the plaintiffs had no expert testimony that it breached the standard of care. Glenwood asserted that the physician, not the hospital, determines whether to transfer a patient to another facility for treatment. Plaintiffs argued that the denial of Glenwood’s first motion for summary judgment was the law of the case and that this second motion should likewise be denied. Plaintiffs also argued that there was an issue of fact as to whether Glenwood breached a duty by allowing treatment of Ms. Robinson to continue at its facility which had no burn unit, no protocol for treatment of burn victims, and facilities unsuitable for treatment required by Ms. Robinson’s condition.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2); Hinson v. Glen Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 1134; Gardner v. Louisiana State University Medical Center in Shreveport, 29,946 (La.App.2d Cir.10/29/97), 702 So.2d 53. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof remains with the movant. However, where the movant will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. The adverse party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to come forward with such evidence, there is no genuine issue of material fact for trial and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Hinson, supra; Lee v. Wall, 31,468 (La.App.2d Cir.1/20/99), 726 So.2d 1044; Gardner, supra.

Appellate courts conduct a de novo review of summary judgments and the documentation supporting and opposing the motion under the same criteria which govern the trial court’s determination of whether summary judgment is appropriate. Lee v. Wall, supra; Gardner, supra.

Plaintiffs in a medical malpractice action have the burden of proving the applicable standard of care, the breach of the standard of care, and the causal connection between the breach and the resulting injuries. La. R.S. 9:2794(A); Hinson, supra; Orea v. Brannan, 30,628 (La.App.2d Cir.6/24/98), 716 So.2d 108. Generally, opinions of expert witnesses who are members of the medical profession are necessary in a medical malpractice action to determine whether the defendant possessed the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence. Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991); Hinson, supra; Lee, supra.

Having set forth the applicable standards for review of summary judgments rendered in medical malpractice actions, we turn now to examine the motions at issue.

Motion for Summary Judgment by Glen-wood

The summary judgment being appealed was granted in response to the second such motion filed by Glenwood in this action. The first motion was denied. Plaintiffs argued before the trial court and argue on appeal that the doctrine of law of the case should apply to bar Glenwood’s second motion. Jurisprudence has consistently found no error in the trial court hearing a second motion for summary judgment after having denied a previous motion. Rogers v. Horseshoe Entertainment, 32,800 (La.App.2d Cir.8/1/00), 766 So.2d 595, writ denied, 2000-2894 (La.12/8/00), 776 So.2d 463 and 2000-2905 (La.12/8/00), 776 So.2d 464; Ward v. Hermitage Ins. Co., 28,236 (La.App.2d Cir.4/3/96), 671 So.2d 1229; Melton v. Miley, 98,1437 (La.App. 1st Cir.9/24/99), 754 So.2d 1088, writ denied, 99-3089 (La.1/7/00), 752 So.2d 867; Francioni v. Rault, 570 So.2d 36 (La.App. 4th Cir.1990), writ denied, 575 So.2d 371 (La.1991); and Efferson v. Link Belt Corp., 476 So.2d 528 (La.App. 1st Cir.1985). Accordingly, we find no error in the trial court entertaining Glenwood’s second motion for summary judgment, which was filed after the addition of new defendants and the opinion of a second medical review panel which referred approvingly to the care provided by Glenwood to Ms. Robinson.

-In support of its motion for summary judgment, Glenwood produced the opinions of the medical review panels and numerous excerpts from the depositions of experts in the medical profession. Glen-wood sought to establish that the decision to transfer a patient is one made by a physician rather than by a hospital, and thus demonstrate an absence of factual support for the plaintiffs’ claim against it.

The first medical review panel concluded that the evidence did not show that Glen-wood failed to meet the applicable standard of care. In depositions, each doctor from the panel concluded that Glenwood did not breach the standard of care and that the decision to transfer a patient is one made by the treating physician. The second medical review panel convened to examine the plaintiffs’ claims against Drs. Walsworth and Ewing. In doing so, the panel examined whether these doctors breached the standard of care in failing to transfer Ms. Robinson to LSUMCS sooner. The panel concluded that neither doctor breached the standard of care. The panel further noted in its written opinion that the care provided by |7Glenwood to Ms. Robinson was “appropriate care and very similar care to what would have been provided at a burn facility,” and that Glen-wood “was adequately equipped with staff personnel and equipment to provide supportive care to this patient.”

The defendants, Drs. Coleman, Ewing, and Walsworth, all testified in depositions that they had no criticism of Glenwood in its care of Ms. Robinson. Dr. Coleman and Dr. Ewing agreed that the decision to transfer a patient is one made by the physician and not by the hospital.

Glenwood introduced excerpts from depositions of medical professionals retained by plaintiffs. Glenwood sought to show that none of the plaintiffs’ experts believed it breached the standard of care. Plaintiffs relied on these same experts to show a genuine issue of material fact for trial as to whether Glenwood breached the standard of care in not acting to transfer Ms. Robinson to a burn unit sooner.

One such expert was Dr. Duane Mur-phree, a family practitioner, who discussed the quality of care provided in burn units as opposed to regular hospital wards. Dr. Murphree explained that burn units have the benefit of personnel with specialized knowledge, a higher nurse to patient ratio, and therapies and protocols which ensure an optimum result for the patient. However, as pointed out in the excerpt relied upon by Glenwood, Dr. Murphree had no specific criticism of the care provided by Glenwood to Ms. Robinson.

Another expert relied upon by both parties was Dr. Edwin A. Deitch, a surgeon who treated Ms. Robinson at LSUMCS. Dr. Deitch stated in his |sdeposition that the earlier a TEN patient is transferred to a burn unit and the earlier aggressive therapy is started, the better the chance of survival. Dr. Deitch opined that Ms. Robinson’s therapy could have been better pri- or to her transfer to the burn unit at LSUMCS. However, Dr. Deitch found nothing in the medical records he reviewed which would allow him to conclude that Glenwood’s care of Ms. Robinson either did or did not breach the standard of care.

Both parties also relied upon the deposition testimony of Dr. Charles Stratton, an infectious disease specialist from Vanderbilt University. Dr. Stratton explained that TEN is well recognized in the medical literature and that the standard of care, no matter what the medical specialty, requires treatment of such patients in a burn center. Dr. Stratton believed that Ms. Robinson should have been transferred to a burn center on May 6, 1992, when the lesions first appeared, and that the failure to do so was a breach of the standard of care. However, Dr. Stratton also stated that the decision to transfer a patient is to be made by a physician and not by the hospital. When asked whether he had any criticism of the care provided by Glen-wood, Dr. Stratton answered, “Not other than to say that they were not prepared to deal with what they had and that’s why the patient needed to be transferred.” When asked whether this meant that Glenwood breached the standard of care, Dr. Strat-ton explained:

No, you don’t have to have a burn unit in a hospital to meet the standard of care, but your physicians need to know when to use a burn unit if you have one available and so that’s what I’m saying. I’m not saying that they should have had a burn unit. I’m saying they didn’t and for that reason the patient needed to be transferred to a burn unit.

| sHaving reviewed the entirety of the supporting and opposing documentation offered by the parties, we conclude that summary judgment in favor of Glenwood is appropriate. There is no evidence to suggest that the plaintiffs will be able to meet their evidentiary burden of proving that Glenwood breached the standard of care.

Generally, a hospital is bound to exercise the requisite standard of care toward a patient that his or her condition may require and to protect the patient from external circumstances peculiarly within the hospital’s control. Piro v. Chandler, 33,953 (La.App.2d Cir.11/1/00), 780 So.2d 394; Borne v. St. Francis Medical Center, 26,940 (La.App.2d Cir.5/10/95), 655 So.2d 597, writ denied, 95-1403 (La.9/15/95), 660 So.2d 453. The record appears to establish that the standard of care for treatment of TEN patients generally requires treatment in a burn unit to increase the chance of survival. Glenwood did not have a burn unit. This fact does not lead to the conclusion that Glenwood breached the standard of care. The evidence offered on this motion establishes that the decision to transfer a patient falls within the realm of expertise of physicians. Doctors, not hospitals, decide whether a patient’s condition requires treatment at another facility. While Ms. Robinson may have been better off had she been transferred to a burn center sooner, nothing in the record indicates that this was a decision for Glenwood to make. Dr. Stratton recognized that Glenwood may not have been the most suitable facility in which to treat a TEN patient, but he still found no breach of the standard of care by Glen-wood. Instead, he explained that it is a physician’s responsibility to recognize the type of treatment ajjjpatient requires and to make decisions which ensure the patient obtains appropriate treatment.

The circumstances here are factually distinguishable from those in Gladney v. Sneed, 32,107 (La.App.2d Cir.8/18/99), 742 So.2d 642, writ denied, 99-2930 (La.1/14/01), 753 So.2d 215, in which a hospital was found at fault in the wrongful death of a patient due to a number of deficiencies, one of which was the failure to transfer. Not only was the small, rural hospital ill-equipped to deal with the patient who presented with multiple traumas, but it also lacked any protocol for transferring such patients to larger facilities, it hired a physician who lacked the training and expertise to work in the emergency room, its nurses failed to notice symptoms of shock in the patient and failed to treat her appropriately in a number of respects, and its emergency room had a broken laryngoscope and was out of epinephrine. In the instant case, there is no showing of any wrongdoing on the part of Glenwood and its employees. There was no criticism of the care provided by Glenwood through its nursing staff. Most importantly, there was no showing that Glenwood’s lack of protocol for transferring patients whose condition might benefit from treatment in a burn unit contributed to any delay in Ms. Robinson’s transfer once the decision to transfer had been made by her treating physician.

For these reasons, we find there is no genuine issue of material fact for trial on the plaintiffs’ claims against Glenwood. There is no evidence tending to show that Glenwood breached its duty of care owed Ms. Robinson. The decision of whether or when to transfer her for treatment at l^a burn unit was one to be made by the physicians treating Ms. Robinson and not by Glenwood. For these reasons, we affirm the trial court’s grant of summary judgment in favor of Glenwood.

Motion for Summary Judgment by Dr. Walsworth

In his motion for summary judgment and on appeal, Dr. Walsworth argued that the plaintiffs have no evidence of any breach of the standard of care on his part and have not even identified any dermatologist as an expert on their behalf. Dr. Walsworth contends that he was never consulted to undertake treatment of Ms. Robinson, but was merely consulted for the purpose of performing a skin biopsy, which he asserts revealed a pathology consistent with TEN, but not diagnostic of that condition.

Dr. Walsworth submitted the favorable medical review panel opinion which found no evidentiary support for the claim that he failed to meet the applicable standard of care. In its written reasons, which were also submitted by Dr. Walsworth in support of his motion, the panel concluded that Dr. Walsworth’s involvement with Ms. Robinson was very limited as he only saw her on one occasion when he performed the skin biopsy. The panel found no indication that he was involved in the management of Ms. Robinson, that he was asked to take a more active role in her treatment, or that he was asked to make treatment recommendations. The panel concluded that Dr. Walsworth followed standard protocol in reporting the biopsy findings to Dr. Ewing, who had initiated the consult.

Dr. Walsworth also submitted his own affidavit and deposition testimony which set forth his involvement in Ms. Robinson’s treatment. Dr. | ^Walsworth explained that he saw Ms. Robinson only when he did the skin biopsy on May 6, 1992, and that he was merely called in as a consult for purposes of performing the biopsy. Dr. Walsworth did not recall any conversations with either Dr. Ewing or Dr. Coleman pertaining to Ms. Robinson. In a note written on May 6, 1992, Dr. Wals-worth indicated a differential diagnosis for Ms. Robinson’s condition and stated that he agreed with the present therapy involving treatment with silvadene. Dr. Wals-worth explained in his deposition that he generally comments as to whether he feels comfortable with how a patient is being treated, but he did not believe that he was expected to have further involvement in her care. Dr. Walsworth also agreed in his deposition that patients with TEN are best managed as burn patients. He believed that Dr. Ewing was doing everything to manage Ms. Robinson as a burn patient and that he could think of nothing different she would have received in a burn center. Dr. Walsworth also agreed that medical literature recommends treatment in burn centers for severe skin problems. He explained that severity is determined by the attending physician. When asked whether he was qualified to advise Drs. Coleman and Ewing to refer Ms. Robinson to a burn center, Dr. Walsworth answered that based on circumstances such as how the patient looked and was being treated, he would possibly recommend that as an option. Finally, Dr. Walsworth insisted that as of May 6, 1992, when he saw Ms. Robinson, there was not a firm diagnosis of TEN.

In opposing Dr. Walsworth’s motion for summary judgment, plaintiffs refute the need for a dermatological expert by maintaining that a 1 ^national standard of care applies to the treatment of TEN, that this standard of care applies regardless of specialty, and that the standard of care requires treatment of such patients in a burn center. As previously mentioned, Dr. Stratton testified in his deposition regarding a national standard of care which crosses specialties. The trial court also previously denied a motion in limine by other defendants to limit testimony to a community standard of care. Jurisprudence has also recognized an exception to the locality rule set forth in La. R.S. 9:2794(A)(1). This exception provides that where there is a uniform national method for performing a particular procedure, an expert with knowledge of the procedure may testify and is not constrained by the need to have practiced in a similar community or locale or under similar circumstances. Leyva v. Iberia General Hospital, 94-0795 (La.10/17/94), 643 So.2d 1236; Piazza v. Behrman Chiropractic Clinic, Inc., 601 So.2d 1378 (La.1992); Rowsey v. Jones, 26,823 (La.App.2d Cir.5/10/95), 655 So.2d 560.

Although there is no identified expert in dermatology, there is testimony of a nationwide standard of care applicable regardless of specialty which requires treatment of TEN patients in burn units. There is also Dr. Walsworth’s own deposition in which he indicates knowledge of the need to treat TEN patients as burn patients and the need to treat severe skin 1 uPfoblems in a burn center. We cannot say that the failure to identify a expert in dermatology is fatal to the plaintiffs’ case at this juncture.

Plaintiffs also relied on excerpts from the deposition of Dr. Stephen Deitel-zweig, another medical expert in the case, whose testimony suggests that Dr. Wals-worth should have recommended referral to a burn unit as part of his consultation. Dr. Deitelzweig opined that a request for a consultation is more than a procedural request. If the doctor has something to offer, then he should provide such information. Dr. Deitelzweig believed that Dr. Walsworth, as a dermatologist, should have had some input regarding treatment and that he should have “raised the options,” which may have included referral to a burn unit for treatment. Dr. Deitel-zweig went on to explain that referral to a burn unit may have been an option because he was not convinced that Ms. Robinson’s outcome would have been different. He also noted that if Glenwood was able to provide adequate resources and good care, then it may not have been necessary to move Ms. Robinson to another facility.

While Dr. Deitelzweig does not categorically state that Dr. Walsworth breached the standard of care, his deposition testimony can be understood as suggesting that conclusion and raises issues of fact that must be decided by a jury. Plaintiffs also submitted the answers to interrogatories by Dr. Coleman which indicate that he had conversations with Dr. Ewing and Dr. Walsworth regarding Ms. Robinson’s condition and that he deferred to their greater expertise in treating Ms. Robinson for TEN.

I, .¡Thorough review of the documentation supporting and opposing Dr. Walsworth’s motion for summary judgment, convinces this court that genuine issues of material fact remain for trial. These issues involve the extent of Dr. Walsworth’s role beyond simply performing the skin biopsy and reporting the pathological findings to Dr. Ewing. Although Dr. Walsworth insists that his role was limited to the biopsy, his deposition shows that he did note his approval of treatment. There are issues as to whether Dr. Walsworth took a more active role in treatment as suggested by Dr. Coleman’s answers to interrogatories, whether Dr. Walsworth should have taken a more active role in treatment, including the possibility of suggesting referral to a burn unit as suggested by Dr. Deitelzweig, and whether his actions or failure to act constitute a breach of the standard of care. Because these are genuine issues of material fact, we reverse the grant of summary of judgment in favor of Dr. Walsworth and remand for further proceedings.

CONCLUSION

For the foregoing reasons, we affirm the summary judgment in favor of Glenwood dismissing the plaintiffs’ claims, and we reverse the summary judgment in favor of Dr. Walsworth and remand for further proceedings. Costs of the appeal from the summary judgment in favor of Glenwood are assessed against plaintiffs, and costs associated with the appeal of summary judgment in favor of Dr. Walsworth are assessed against him.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, C.J., WILLIAMS, STEWART, KOSTELKA, and DREW, JJ.

Rehearing denied.

      . Glenwood's first motion for summary judgment was before Judge John L. Lolley of the Fourth Judicial District Court. Its second motion was before the late Judge Michael S. Ingram.

      . Drs. David Barnes, J. Dean Stockstill, and Owen Meyers served on the medical review panel which addressed the claims against Glenwood and gave depositions, excerpts of which were introduced by Glenwood in support of its motion for summary judgment.

      . La. R.S. 9:2794(A)(1) requires the plaintiff in a medical malpractice action to prove:
      (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by 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 in 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 ... within the involved medical specialty.