author:
liCALOGERO, Chief Justice.
     |, KIMBALL, Justice,

text:
    ANR PIPELINE COMPANY v. LOUISIANA TAX COMMISSION, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russell R. Gaspard, Member of the Louisiana Tax Commission.
    No. 2002-C-1479.
    Supreme Court of Louisiana.
    July 2, 2008.
    Rehearing Denied Sept. 5, 2003.

      Brian A. Eddington, Baton Rouge, Counsel for Applicant.
    Angela M. Adolph, Baton Rouge, Hilton S. Bell, Lawrence E. Garrett, Milling Benson & Woodward, New Orleans, Counsel for Respondent.
   liCALOGERO, Chief Justice.

We granted certiorari to consider whether original jurisdiction over constitutional challenges to certain Louisiana tax provisions relative to assessments of public service property for taxation purposes lies with the Louisiana Tax Commission (“LTC”) or with Louisiana district courts. Finding that the court of appeal correctly held that Louisiana district courts have original jurisdiction over constitutional questions, we affirm the judgment of the court of appeal holding that a protest to a tax assessment based solely on a constitutional challenge was not prematurely filed in the district court, even though the LTC had not yet issued a final determination of assessed valuation.

“Pipeline company” means any company that is engaged primarily in the business of transporting oil, natural gas, petroleum products, or other products within, through, into or from this state, and which is regulated by (1) the Louisiana Public Service Commission, (2) the Interstate Commerce Commission, or (3) the Federal Power Commission, as a "natural gas company” under the Federal natural Gas Act, 15 U.S.C. §§ 717-717w, because that person is engaged in the transportation of natural gas in interstate commerce, as defined in the Natural Gas Act.

The plaintiffs in this case are five interstate pipeline companies providing gas transportation, storage, and balancing services to customers in Louisiana, and owning property within the State of Louisiana that qualifies as “public service property” under |¡>the definition set forth in La.Rev. Stat. 47:1851(K). For the tax year 2000, the Louisiana Tax Commission issued its initial determinations of assessed valuation for ad valorem tax purposes, assessing the interstate pipeline companies at 25 percent of the fair market value of their public service properties in Louisiana, pursuant to La. Const. Art. 7, § 18(B). The interstate pipeline companies filed a protest with the LTC, challenging the constitutionality of La.Rev.Stat. 47:1851(K) under the United States and Louisiana constitutions. The challenge arises from the fact that intrastate pipeline companies do not qualify as “public service properties,” but are instead |3classified as “other property” pursuant to La. Const. Art. 7, § 18(B). As a result of that classification, intrastate pipeline companies are assessed by local assessors at only 15 percent of the fair market value of their properties.

Such a disparity results in a violation of the uniformity requirement of La. Const. Art. 7, § 18(A), as well as violations of their right to equal protection of the law under the United States and Louisiana constitutions and of the prohibition against impermissible burdens on interstate commerce under the United States Constitution, the interstate pipeline companies assert. They additionally claim that some pipeline companies that should be taxed by the LTC at 25 percent because they fall under the definition of “public service companies” are being taxed by local assessors at 15 percent, also in violation of their rights to equal protection of law and due process under the United States and Louisiana constitutions.

Prior to the issuance of a final determination of assessed valuation by the LTC, the interstate pipeline companies paid the taxes under protest, then filed declaratory judgment actions in district court, again asserting the constitutional challenge summarized above. The LTC responded by filing exceptions of prematurity, no cause of action, and nonjoinder. The exception of prematurity was based on the provisions of La.Rev.Stat. 47:1856, which generally requires that taxpayers defer instituting suit |4in district court until the LTC has issued a final determination. See La.Rev. Stat. 47:1856(D)(1). The district court granted the LTC’s exceptions of prematurity and no cause of action, and dismissed the suits with prejudice. The interstate pipeline companies appealed, and the appeals were consolidated in the court of appeal.

The court of appeal reversed the district judgment granting LTC’s exception of prematurity. ANR Pipeline Co. v. Louisiana Tax Comm’n, 01-2594 (La.App. 1 Cir. 3/20/02), 815 So.2d 178. The court of appeal stated as follows:

The administrative procedures set forth in Revised Statute 47:1856 require that plaintiffs obtain a final adjudication by the Commission as to “all objections,” whether contesting correctness or legality, before seeking judicial review in the district court.... The Commission, however, cannot rule on an objection to correctness based on lack of uniformity and quality under the Louisiana and United States Constitutions, which are the prius of all Louisiana legislation. See La. C.C. art. 1, Official Revision Comment (d). Thus, it would be futile and wasteful to require these taxpayers to obtain a “final adjudication” from the Commission when the only issue remaining is the constitutionality of Revised Statute 47:1851(K), an issue the Commission lacks jurisdiction to decide. Weinberger v. Salfi, 422 U.S. 749, 765-766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).

Id. at 10, 815 So.2d at 185. We granted the LTC’s application for review of the above decision.

This court has previously addressed the general question of whether a tax protest based on a constitutional challenge may be filed directly in district court prior to the issuance of a final adjudication of assessed valuation by the LTC. In Triangle Marine, Inc. v. Savoie, 95-2873 (La.10/15/96), 681 So.2d 937, we noted that challenges to property tax assessments are categorized either as challenges to the “correctness of assessments” or challenges to the “legality of assessments.” Id. at 3, 681 So.2d at 939. Although correctness challenges are subject to review under La. Const. Art. 7, § 18(E) by the parish governing authority and the LTC before being reviewed by Louisiana courts, legality challenges may be filed directly in the district court pursuant to the provisions of La. Const. Art. 7, § 3 and La.Rev.Stat. 47:2110(B). Id. at 3-4, 681 So.2d at 939. In Triangle Marine, we held that | fichallenges to “both the validity of the law itself and the constitutionality of the administration of an otherwise valid law” present legality issues that may be reviewed directly by the district court. Id. at 7, 681 So.2d at 941. The upshot of the Triangle Marine case is that the LTC has original jurisdiction over correctness challenges, while the district court has original jurisdiction over legality challenges, including the constitutional challenge presented in that case. Id. The district court has only appellate jurisdiction over correctness challenges. Id. In the instant case, the court of appeal departed somewhat from the rule established by Triangle Marine and held that district courts have original jurisdiction over constitutional challenges, regardless of whether the case involves a challenge to correctness or a challenge to legality. ANR Pipeline Co., 01-2594, 815 So.2d 178.

Nevertheless, the LTC’s appeal to this court is not based on the fact that the court of appeal departed from the rule established by Triangle Marine by holding that all constitutional challenges, including challenges to correctness, may be filed directly in district court. Rather, the LTC argues that a completely different rule should apply in the instant case because different statutes govern review of tax assessments relative to public service properties. The tax protest at issue in Triangle Marine was filed under La.Rev.Stat. 47:2110, the general tax assessment protest statute. However, the tax protest at issue in this case was filed under La.Rev. Stat. 47:1856, the tax protest statute that applies specifically to assessment of public service property. Under the express language of that statute, a taxpayer who objects to an initial determination of assessed valuation of public service property “shall assert all 17objections” to the LTC. La.Rev. Stat. 47:1856(B). Further, the judicial review provision in that statute states as follows:

Any company that is dissatisfied with the final determination of assessed valuation by the Louisiana Tax Commission may institute suit appealing the correctness or legality of such final determination of assessed valuation for taxation by the Louisiana Tax Commission.

La.Rev.Stat. 47:1856(D)(1).

The LTC argues that the highlighted language above demands that protests concerning tax assessments on public service property be subject to different rules than those set forth in Triangle Marine. Under the above language, public service property taxpayers must present to the LTC all objections to the initial determination of assessed valuation, including legality and constitutionality challenges, before challenging ad valorem tax assessments in district court, the LTC suggests. Moreover, the LTC interprets the above provision to require that a taxpayer receive a final determination of assessed valuation from the LTC prior to filing a “suit appealing” such valuation in district court. Accordingly, the LTC argues, the court of appeal improperly reversed the trial court judgment granting its exception of prematurity.

The gravamen of the LTC’s argument is that the requirements of La.Rev.Stat. 47:1856 deprive Louisiana district courts of original jurisdiction over any matter related to the correctness or legality, including constitutionality, of a public service property tax assessment. Under the LTC’s interpretation, district courts are confined to the exercise of appellate jurisdiction over all challenges to public service property tax assessment challenges, regardless of whether they are challenges to correctness or challenges to legality. Since the district court can exercise only appellate jurisdiction over such cases, any suit filed prior to the LTC’s issuance of a final determination of assessed valuation is premature, the LTC argues.

|sThe LTC’s argument is compromised, however, by the fact that the LTC admits that it has no subject-matter jurisdiction to consider the constitutional issues presented by this case. Although none of the parties questions that conclusion, we note that administrative agencies, like the LTC, “lack the power to hold statutory provisions unconstitutional.” Albe v. Louisiana Workers’ Compensation Corp., 97-0581, pp. 6-7, (La.10/21/97), 700 So.2d 824, 827-28, and cases cited therein. The basis of this rule has been stated by this court as follows:

The determination of whether a statute is unconstitutional is a purely judicial function. State v. Board of Sup’rs of Elections, 186 La. 949, 173 So. 726 (La.1937). The judicial power of the state is constitutionally vested in the courts. La. Const. Art. 5 § 1. The Commission is not a court but is an administrative agency in the executive branch of state government. See Bagert v. Bd. of Ethics for Elected Off., 594 So.2d 922 (La. App. 1 Cir.1992). An administrative agency does not have the authority to determine the constitutionality of statutes. See Church Point Wholesale Beverage v. Tarver, 614 So.2d 697, 702 n. 8 (La.1993), and Red River Coors, Inc. v. McNamara, 577 So.2d 187 (La.App. 1 Cir.), writ denied, 582 So.2d 1306 (La.1991) (Board of Tax Appeals does not have authority to decide the constitutionality of statutes); Bell v. Dept. of Health and Human Resources, 483 So.2d 945, 947 n. 1 (La.1986), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986), and Appeal of Brisset, 436 So.2d 654 (La.App. 1 Cir.), writ denied, 441 So.2d 749 (La.1983) (Civil Service Commission does not have the authority to decide the constitutionality of statutes). Thus, the district court, and not the Commission, had jurisdiction to rule on the constitutionality of the statutes.

Midboe v. Commission on Ethics for Public Employees, 94-2270, p. 7 (La.11/30/94),646 So.2d 351, 355, quoted in Albe, 97-0581 at 7-8, 700 So.2d at 828.

When all of the LTC’s arguments on this issue are considered together, it becomes apparent that the LTC is arguing that it is empowered by La.Rev.Stat. 47:1856 to exercise original jurisdiction over a constitutional issue it has no subject matter jurisdiction to consider. However, this court previously rejected virtually the same argument in Albe.

l<)At issue in Albe was whether hearing officers in an administrative agency, the Office of Workers’ Compensation, had subject matter jurisdiction to determine issues of constitutionality in claims arising under the Workers’ Compensation Act. 97-0581, 700 So.2d 824. Under the provisions of La. Rev. State 23:1310.3, hearing officers, similar to the LTC in this case, are “vested with original, jurisdiction over all claims or disputes” arising out of the Workers’ Compensation Act (emphasis supplied). See Id. at 5, 700 So.2d at 827. Nevertheless, this court held that Workers’ Compensation hearing officers do not have original jurisdiction over constitutional issues because the determination of constitutionality is a purely judicial function that cannot be vested in an administrative agency like the Office of Workers’ Compensation. Id.

The same rule must apply to the LTC in this case. The fact that the Legislature has granted the LTC general authority to hear “all objections” does not, and cannot, give the LTC subject matter jurisdiction over constitutional questions, as the LTC concedes. With few exceptions, Louisiana district courts have original jurisdiction over all civil and criminal matters. La. Const. Art. 5 § 16(A). Moreover, “administrative agencies lack the power to hold statutory provisions unconstitutional.” Id. at 6, 700 So.2d at 828. It is the district court that has original jurisdiction to rule on the constitutionality of statutes. Id. at 8, 700 So.2d at 828. Accordingly, in addition to the rule established by Triangle Marine allowing nonpublic service property taxpayers to file protests based on legality challenges directly in district court, we now hold that all taxpayers, including public service property taxpayers, may file protests based on constitutional challenges directly in district court.

Because their protests are based on constitutional challenges, the public service property taxpayers’ suits were not prematurely filed in district court. The court of |inappeal properly reversed the district court judgment granting the exception of prematurity filed by the LTC, and that judgment is hereby affirmed.

However, our review of the court of appeal decision in this case reveals that the court of appeal failed to address the issues presented by the LTC’s exception of no cause of action, which was also granted by the trial court. We therefore remand this case to the court of appeal for consideration of the LTC’s exception of no cause of action.

DECREE

The decision of the court of appeal reversing the trial court judgment granting the LTC’s exception of prematurity is affirmed. The case is remanded to the court of appeal for consideration of the LTC’s exception of no cause of action.

AFFIRMED AND REMANDED.

KIMBALL, J., dissents and assigns reasons.

KNOLL, J., dissents for reasons assigned by KIMBALL, J.

|, KIMBALL, Justice,

dissenting.

I agree with the majority’s pronouncement of the general rule that the Louisiana Tax Commission (“LTC”) does not have original jurisdiction over constitutional questions and lacks the power to hold statutory provisions unconstitutional. I disagree, however, with the majority’s sweeping statement that “a taxpayer may protest a tax assessment directly in district court ... when the protest is based on a constitutional challenge.” Op. at 1151. In my view, the timing of the lodging of a suit based on a constitutional challenge in the district court is best decided on a case-by-case basis.

In the instant case, the LTC filed an exception of prematurity as to the taxpayers’ claims seeking review in the district court of the initial determination of assessed valuation of their public service properties for 2000. The LTC objected to the taxpayers’ actions seeking declaratory judgment on the constitutionality of La. R.S. 47:1851(K) on grounds of failure to state a cause of action because no justicia-ble controversy was presented. The taxpayers’ petitions for declaratory judgment allege that La. R.S. 47:1851(K) is an unconstitutional burden upon interstate com-mercej^under the United States Constitution, a violation of their equal protection and due process rights under both the United States and Louisiana Constitutions, and a violation of their right to uniform taxation according to its class pursuant to La. Const, art. VII, § 18.

In my view, it is inefficient and futile to require a final assessment when the sole challenge to the initial determination of the assessed valuation is the constitutionality of a statute on its face. On the other hand, I believe a final assessment is required when the constitutional challenge to the initial determination of the assessed valuation is dependent on facts unique to a particular case. In the case at bar, one of the taxpayers’ allegations is that similarly situated taxpayers are assessed by local parish assessors at 15% of the fair market value of similar properties while they are assessed at 25%. Thus, they contend this disparate treatment violates their right to equal protection of the laws, due process and uniformity of taxation. A proper analysis of these claims requires the introduction of specific evidence and a final assessment by the LTC to establish that the taxpayers are, in fact, finally assessed at the rate of 25%. Prior to the issuance of a final assessment by the LTC, the taxpayers’ request that the district court review their constitutional claims on these grounds is therefore premature. Conversely, as explained above, those claims based on a facial challenge to the statute may be presented to the district court at this time as it would be pointless to require a final assessment prior to the district court’s consideration of the constitutional issue.

I would therefore remand the case to the district court for it to determine which challenges it can entertain at this time and to transfer those constitutional issues requiring a final assessment for proper resolution to the LTC.

KNOLL, J., dissents for the reasons assigned by Kimball, J.

       Retired Judge Walter F. Marcus, Jr., assigned as Justice ad hoc, sitting for Associate Justice John L. Weimer, recused.

      . ANR Pipeline Co.; Stingray Pipeline Co., L.L.C.; UT Offshore Systems, L.L.C.; Tennessee Gas Pipeline Co.; and Southern Natural Gas Co.

      . La.Rev.Stat. 47:1851(K) provides as follows:

      . Under the provisions of La.Rev.Stat. 47:1957, "[a]ll taxable property in the state, except public service properties, shall be assessed by the several assessors.” However, public service properties are assessed by the LTC under the provisions of La.Rev.Stat. 47:1856. See fn. 7, infra. Regarding property, other than public service property, assessed by assessors, the LTC reviews appeals by taxpayers. La.Rev.Stat. 47:1989. However, regarding public service property, the LTC both issues the initial determination of assessed valuation and reviews that initial determination.

      . La. Const. Art. 7, § 18 provides, in pertinent part, as follows:

        (A) Assessments. Property subject to ad valorem taxation shall be listed on the assessment rolls at its assessed valuation, which, except as provided in Paragraph (C) shall. be a percentage of its fair market value. The percentage of fair market value shall be uniform throughout the state upon the same class of property.
      (B) Classification. The classifications of property subject to ad valorem taxation and the percentage of fair market value applicable to each classification for the purpose of determining assessed valuation are as follows:
      Classifications Percentages
      1. Land 10%
      2. Improvements for residential 10% purposes
      3. Electric cooperative properties, 15% excluding land
      4. Public Service Properties, ex- 25% eluding land
      5. Other property 15%
      sjs % s¡« sj< :j;
      (E) Review. The correctness of assessments by the assessor shall be subject to review first by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law.

      . See footnote 4, supra.

      . See footnote 3, supra.

      . La.Rev.Stat. 47:1856, entitled "Notice of valuation, hearing, appeals,” provides, in pertinent part, as follows:
      A. (1) The Louisiana Tax Commission shall give notice of the initial determination of the assessed valuation in writing to the company. This notice shall be delivered by certified mail, return receipt requested addressed to, or by personal service upon, the officer or authorized agent of the company responsible for the filing of the annual report. In the event that the company objects to the initial determination by the Louisiana Tax Commission, it may, within thirty days after receipt of the notice of that initial determination, file a protest in writing to the Louisiana Tax Commission which protest shall fully disclose the reason for protesting the initial determination.
      * * * * %

      (3) In the event that a protest is filed, the Louisiana Tax Commission shall grant a full and complete hearing to the company at a time and place to be determined by the Louisiana Tax Commission, but in no case shall the hearing be scheduled more than one hundred eighty days from the date the company filed its written protest in the case of public service property. Such hearing shall not be consolidated with any other hearing with respect to any other protest filed in a different tax year by the taxpayer or by any other taxpayer of an initial determination of assessed valuation by the Louisiana Tax Commission.
      B. At the hearing, the company shall assert all objections to the initial determination by the Louisiana Tax Commission and may file a statement under oath specifying each respect in which the initial determination is contested. The company may also offer full and complete testimony in support of its objections. Within thirty days following the completion of the hearing, the Louisiana Tax Commission shall notify the company, by the method specified in Subsection A of this Section, of its final determination.
      sft sfs sf: # #
      D. (1) Any company that is dissatisfied with the final determination of assessed valuation by the Louisiana Tax Commission may institute suit appealing the correctness or legality of such final determination of assessed valuation for taxation by the Louisiana Tax Commission. However, to state a cause of action, the petition instituting such suit shall name the Louisiana Tax Commission as defendant and shall set forth not only the final determination of assessed valuation for taxation made by the Louisiana Tax Commission appealed from, but also the assessed valuation for taxation that the company deems to be correct and legal and the reasons therefor.

      . The court of appeal also addressed other issues not relevant to our decision today.

      . The court of appeal referred to its previous opinion in ANR Pipeline Co. v. Louisiana Tax Comm'n, 00-2251, p. 2 (La.App. 1 Cir. 12/22/00), 774 So.2d 1261, 1262, writ denied, 01-0250 (La.4/20/01), 790 So.2d 633 to support its statement that the constitutional challenge in this case is a correctness challenge, as opposed to a legality challenge. Because it does not impact the result in this case, we do not address that statement.

      . See footnote 3, supra.

      . La. Const. Art. 7, § 3, "Collection of Taxes,” provides, in pertinent part, as follows:
      (A) The legislature shall prohibit the issuance of process to restrain the collection of any tax. It shall provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.

      . La.Rev.Stat. 47:2110, "Suits to recover taxes aid under protest,” provides, in pertinent part, as follows:
      B. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer designated by law for the collection of the tax shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.

      . See footnote 11, supra.

      . See footnote 6, supra.


source: Caselaw Access Project

author: LAMY, Judge. AMY, J.,

license: Public Domain

text:
    Darrell SCOTT and Bonnie McFarland v. DAUTERIVE HOSPITAL CORPORATION, et al.
    No. 02-1364.
    Court of Appeal of Louisiana, Third Circuit.
    April 23, 2003.
    Rehearing Denied June 18, 2003.

      Harry Douglas Hoskins, III, Hoskins & Hoskins, LC, New Orleans, LA, for Plaintiff/Appellant Darrell Scott.
    Marc W. Judice, Judice, Hill & Adley, Lafayette, LA, for Defendant/Appellee, Louisiana Insurance Guaranty Association.
    Stephen Gary McGoffin, Durio, MeGof-fln, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, St. Paul Fire & Marine Insurance Company, Dauterive Hospital Corporation.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   LAMY, Judge.

The plaintiff filed suit against the defendant hospital, alleging that inadequate care in its emergency room resulted in physical injury. He pursued various negligence theories of recovery and sought damages under the Emergency Medical Treatment and Active Labor Act (EMTALA) as well. The jury denied the plaintiffs claims of EMTALA violations, gross negligence, inadequate credentialing, and inadequate training and supervision of employees, but found the hospital breached the standard of care owed to the plaintiff. However, the jury concluded that this breach did not cause damage to the plaintiff. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Darrell Scott, received injuries as the result of a bar fight on February 27, 1994. The record indicates that injury possibly resulted from a bottle being broken over his head. At the time of the incident, Mr. Scott was accompanied by his girlfriend, Bonnie McFarland. When Ms. McFarland found Mr. Scott lying on the ground outside of the bar in New Iberia, she telephoned for an ambulance. Acadian Ambulance Service received the telephone call, arriving at the scene at 1:36 a.m. Paramedic Keith Pelle-rin testified that he found Mr. Scott lying on the ground, but his eyes were open. He explained that Mr. Scott was awake, “but very lethargic.” He noted a “small one and a half inch laceration to the left temporal lobe.” Mr. Pellerin found the plaintiffs pupils to be round, equal, and reactive to light. He found the smell of alcohol on the plaintiffs breath to be “very strong.” Mr. Pellerin testified that he indicated on his report that the patient’s condition at the scene was “non-emergent,” a term he described as meaning “non life threatening.” The plaintiff was transported to Dauterive Hospital in New Iberia.

LOn arriving at the hospital, Mr. Scott was attended by Nurse Mona Moore and Dr. Agapito Castro, a physician with Coastal Emergency Medical Services of Louisiana. By contract, Coastal provided emergency physician services to Dauterive. Nurse Moore noted on the emergency room report that Mr. Scott was “awake, alert, skin warm, dry to touch.” She explained that she would have noted if she had found the patient to be lethargic. There is no indication of lethargy on the emergency room record. Furthermore, there is no inscription on the record indicating Dr. Castro’s finding as to whether Mr. Scott was awake, alert, or oriented. He stated that “in this particular case the nurse said that the patient was awake, alert, and I took her word for that.” Dr. Castro ordered x-rays of Mr. Scott, which, according to the x-ray technician performing the tests, were not completed due to Mr. Scott’s inability to keep his mouth open for the completion of one of the tests. The technician testified that he noted the patient to be “highly intoxicated.” Dr. Castro testified that, if he was informed of the inability to complete the x-rays series, he could not recall it. Dr. Castro sutured Mr. Scott’s laceration and released him.

According to Ms. McFarland, her brother and the nurse assisted Mr. Scott to the car for transport home. Mr. Scott was released with a set of instructions. Ms. McFarland stated that after she and Mr. Scott were returned to their camper, she attempted to wake Mr. Scott every hour or two, according to the release instructions. She contends that, eventually, she telephoned the ambulance when Mr. Scott became incontinent and began vomiting. Mr. Scott was transported to University Medical Center in Lafayette and then to Charity Hospital in New Orleans. At Charity, he [¡¡underwent brain surgery, resulting in the removal of two hematomas from his right frontal and right temporal lobes. The parties do not dispute that the surgery has impacted Mr. Scott’s life, resulting in behavioral and cognitive imbalances.

The instant matter was initially filed in April 1995. Dr. Castro, Coastal, Dauterive and its insurer, St. Paul Fire and Marine Insurance Company, were named as defendants in the various supplemental and amending petitions that have been filed since that time. The matter has a lengthy history, with numerous supplemental and amending petitions and the addition of parties and various theories of recovery. The plaintiffs basic contention is that his symptoms were such that a CT scan should have been ordered to eliminate the possibility of injury to the brain while he was at Dauterive. He also asserts that, had a blood alcohol test been performed, it would have eliminated drunkenness as a cause of what he contends was his lethargic condition at the hospital. He argues this was not done due, in part, to his uninsured status. He argues that had the CT scan been performed at the hospital, the surgery required due to the hemato-mas could have been performed more quickly. He asserts that the resulting damage to his brain was increased by the delay.

Pursuant to a February 2001 settlement, Dr. Castro, Coastal, the Louisiana Patient’s Compensation Fund (PCF), and the Louisiana Insurance Guaranty Association, were released from the suit. The plaintiff continued this matter against the instant defendants, Dauterive and St. Paul. At trial, the plaintiff argued that Dauterive breached the standard of care owed in a number of respects, failed to adequately credential Dr. Castro for the emergency room, and failed to properly train and supervise its employees. He argued that the conduct in the emergency room was [¿not only negligent, but grossly negligent. The plaintiff also asserted that the hospital failed to provide an adequate screening as required by EMTALA. The jury denied the plaintiffs claims, although it found that Dauterive breached the standard of care owed. However, it concluded that this breach was not the cause of damages to the plaintiff.

The plaintiff appeals, asserting various interrelated assignments of error and issues for review. With regard to pretrial proceedings, the plaintiff contests a partial summary judgment entered as to Dauterive’s status as a qualified health care provider. He also questions the jury charges provided, contending that they were inadequate in several respects. He contends the inadequate instructions caused jury error and require a de novo review. The plaintiff also contests a motion in limine that was granted, which excluded evidence of future medical damages which he argued were available under EMTALA and theories of recovery not arising under the Medical Malpractice Act. Next, the plaintiff contests several of the findings of the jury, contending that their findings required the granting of a new trial. Finally, the plaintiff argues that the trial court erred in excluding evidence as to taxes that would be due from the plaintiff in the event he received a lump sum award for lost earning capacity.

Discussion

Qualified Health Care Provider Status

Prior to trial, the parties filed cross motions for summary judgment on the issue of whether Dauterive is a qualified health care provider, which subjects the plaintiff to the “cap” of the Medical Malpractice Act. The trial court granted the motion filed by Dauterive, concluding that the hospital was a qualified health care provider. The | [¡plaintiffs motion was denied. The plaintiff asserts that this determination was in error, arguing that the St. Paul policy issued to the hospital is not a malpractice liability insurance policy at all, but is a “fronting” policy that constitutes a surety agreement. He contends that it does not meet the requirements of La.R.S. 40:1299.42(E)(1) and, therefore, Dauterive cannot avail itself of the cap of the Medical Malpractice Act.

|fiIn support of his motion for summary judgment on this issue, the plaintiff points to deposition testimony of a St. Paul representative, Jane Lienemann. She testified that the premium paid by HealthTrust, Inc., Dauterive’s parent company, for the policy issued by St. Paul, was not reflective of exposure to liability, but rather, was what she described as a fronting premium, reflective of costs associated with issuing and servicing the policy. She also testified regarding an Indemnification Agreement dated September 1993, in which Health-Trust agreed to indemnify St. Paul for liabilities under the policy. HealthTrust also agreed to establish a trust containing assets in order to cover the liabilities.

The plaintiff further contends that wording in other areas of the medical malpractice provisions indicate that the type of policy issued by St. Paul is not that required for application of the cap described above. Specifically, the plaintiff points to La.R.S. 40:1299.44(A)(3)(a) regarding payment of a surcharge by the health care provider to the Patient Compensation Fund as follows: “Such surcharge shall be due and payable to the patient’s compensation fund within forty-five days after the ■premiums for malpractice liability insurance have been received by the agent of the insurer, risk manager, or surplus line agent from the health care provider in Louisiana.” (Emphasis added.) Additionally, La.R.S. 40:1299.45(A)(1) provides that “[o]nly while malpractice liability insurance remains in force, or in the case of a self-jinsured7 health care provider, only while the security required by regulations of the board remains undiminished, . are the health care provider and his insurer liable to a patient, or his representative, for malpractice to the extent and in the manner specified in this Part.” The plaintiff contends that the use of “premium” and “malpractice Lability insurance” indicates that a “fronting” policy as described by Ms. Lienemann is insufficient to qualify under the statute.

The plaintiff correctly states that the limiting provisions of the Medical Malpractice Act are to be strictly construed as they are in derogation of the rights of tort victims. See Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00); 758 So.2d 116. However, we do not conclude that the trial court was incorrect in granting the partial summary judgment in favor of the defendants. The documents submitted on the motions for partial summary judgment indicate that the policy issued by St. Paul to HealthTrust, Inc. is malpractice liability insurance within the terms of the statute. A Certificate of Enrollment is contained in the record whereby the PCF acknowledges that at both the time of the treatment at Dauterive Hospital and the commencement of the action, St. Paul provided a “claims made” policy for the hospital. The affidavit of the Malpractice Insurance Director for the Patient’s Compensation Fund Oversight Board is attached, whereby she confirms the existence of professional liability coverage during this time period. Reference to the text of |Rthe St. Paul policy reveals that it contains the assurances commonly found in a liability policy. The addition of the indemnity agreement and the type of contractual provision entered into between HealthTrust, Inc. and St. Paul do not detract from St. Paul’s obligation to service the policy. It requires performance to a claimant just as it would if the “fronting” provisions contained in the indemnity agreement were not attached. Ms. Liene-mann’s testimony confirmed this in her deposition, wherein she responded to defense counsel’s questioning as follows:

Q. Exhibits 2 and 3 which are the policy and then that one endorsement for Louisiana, was it St. Paul’s intention to issue a policy of insurance on behalf of HealthTrust?
A. Yes, it was.
Q. Was it St. Paul’s intention that third persons such as Mr. Darrell Scott would look to that policy to define the insurance coverage being provided to a particular named insured or endorsed insured?
A. Yes.
Q. And St. Paul had a mechanism set up by which it could obtain reimbursements in any amount that it paid to those third persons; correct?
A. That is correct.
Q. In fact, that this was referred to in your industry as a fronting policy does not change the character of this in terms of it being an insurance policy, does it?
A. No, it does not.

19Finding that the policy is sufficient under the statute, we find no error in the trial court’s determination to grant the motion for partial summary judgment in favor of Dauterive, concluding that the hospital was a qualified health care provider.

Jury Charges

The plaintiff contests the jury instructions provided by the trial court, asserting that they resulted in an incorrect verdict. He argues an incorrect verdict resulted because several charges he requested were not included in the trial court’s instructions. He also asserts that an incorrect and misleading instruction was provided as to causation. Due to these alleged errors, he contends that the trial court should have granted a new trial and, on appeal, this court should invalidate the jury’s finding and perform a de novo review.

In consideration of this argument, we are mindful of the standard of review for jury instructions. In Nicholas v. Allstate Ins. Co., 99-2522, p. 8-9 (La.8/31/00); 765 So.2d 1017, 1023, the Louisiana Supreme Court explained:

Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Melancon v. Sunshine Const., Inc., 97-1167 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011. The basis for this rule of law is that trial courts are given broad discretion in formulating jury instructions and it is well accepted that a trial court judgment will not be reversed so long as the charge correctly states the substance of the law. United States v. L’Hoste, 609 F.2d 796, 805 (5 Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). However, when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Smith v. Travelers Ins. Co., 430 So.2d 55 (La.1983). In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if they adequately provide the correct principles of law as applied to the issued [sic] framed in the pleadings and evidence and whether they adequately guided the jury in its deliberation. Kaplan v. Missouri-Pacific R.R. Co., 409 So.2d 298, 304-05 (La.App. 3 Cir. 1981). Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Brown v. White, 405 So.2d 555, 560 (La.App. 4 Cir.1981), aff'd, 430 So.2d 16 (La.1982).

First, the plaintiff asserts that the jury’s determination that EMTALA was not violated was due in part to the trial court’s failure to include a jury charge he requested, which indicated that a hospital is liable for a doctor’s violation of EMTALA. The trial court instructed the jury as to EM-TALA as follows:

Let me say that we have a statute here you’ve heard called EMTALA. It reads in part “... for the examination and treatment for emergency medical conditions.” The medical screening requirement in the case of a hospital that has a hospital emergency department, if any individual comes to the emergency department and a request is made for the individual’s — on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency room to determine whether or not an emergency medical condition exits [sic].
Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section in a civil action, the participating hospital obtained those damages available to personal injury under the laws of the state in which the hospital is located, and such equitable relief as is appropriate.
An emergency conditions [sic] means the following: a medical condition manifesting itself by acute symptoms of sufficient severity such, and that includes severe pain, such that the absence of immediate attention could reasonably be expected to result in one, placing the health of the individual in serious jeopardy; two, serious impairment to bodily function; or three, serious dysfunction of any bodily organ or party.
A participating hospital may not delay provisions of an appropriate medical screening examination required under Sub-section A of this section or further medical examination and treatment requirement under Sub-section B of this section, in order to inquire about the individual[’]s method of payment or insurance status.
InA violation of a statute, code, ordinance, or government regulation, may not be negligence where the action which violated the statute was not unreasonable under all the circumstances, or was not a legal cause of the action.

Reference to EMTALA, provided at 42 U.S.C. § 1395dd, indicates that the above instructions are essentially a verbatim rendering of the statute. Furthermore, when the jury inquired as to EMTALA requirements, the trial court delivered a redacted version of the statute for the jury’s review and did so with consent of counsel.

Although the plaintiff preferred a specific instruction regarding the hospital’s liability under the statute for Dr. Castro’s fault, we do not conclude that the trial court was required to provide such specific instruction. Rather, the trial court instructed the jury by providing the text of the statute, which broadly requires that the hospital “must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department....” 42 U.S.C. § 1395dd(a). While no particular directive was provided regarding the hospital’s responsibility for any failure of Dr. Castro, the jury was free to find in this regard as the trial court did not provide any instruction which would have precluded such a finding. Our review of the instruction reveals no erroneous instruction.

Similarly, the plaintiff contends that the trial court was required to provide specific instructions regarding the apparent authority doctrine or control. In his brief to this court, the plaintiff states that “[t]here were no signs in the hospital emergency room ... stating that it did not employ the doctors, who worked there.” He also points out that Dr. Castro testified that patients likely believed that he was an employee of the hospital and that the hospital billboards advised passersby to “Trust the Doctors you Know.” These factors, the plaintiff contends, require instruction as to apparent authority and control.

|iaIn reviewing this portion of the jury charge, we observe that the jury was not provided with instruction regarding employee/independent contractor status. Neither was the jury informed of the settlement with Dr. Castro and Coastal. The jury was simply informed that Dr. Castro was not a defendant. Evidence was presented as to the fault, or lack thereof, of all actors. Additionally, defendants presented evidence regarding Dr. Castro’s employment with Coastal and his performance as an emergency room physician at Dauterive. The defendants also presented expert testimony regarding hospital administration and the independent contractor status of emergency room doctors in general.

While there was no instruction given as to apparent authority and control, or independent contractor/employee classification, the jury was instructed: “You must bear in mind that a corporation can only act through officers, employees or agents. An employer is hable for the negligent acts of its employees while they are acting in the course and scope of their employment.” Additionally, the jury was instructed that: “A hospital is also responsible for the negligence of its employees under the doctrine of respondeat superi- or.” Simply put, the case proceeded as an independent contractor matter with little evidence on the question of whether Dr. Castro was an employee of the hospital. In the event the jury found Dauterive hable, the verdict sheet required apportionment of fault between Dauterive and Dr. Castro. Given the weight of the evidence presented to the jury, we find no error in the refusal to instruct as to apparent authority or control or that any such error would have probably contributed to the verdict, requiring that it be set aside.

Next, the plaintiff objects to the trial court’s instruction on causation. The trial court instructed the jury as follows:

|1sWith respect to the issues in this case, the burden of proof rests upon the party who asserts the affirmative of an issue. For example: should the plaintiff assert that the defendant is negligent, the plaintiff has the burden of proving this. On the other hand, should the defendant assert that the plaintiffs injuries are caused by plaintiffs own negligence or the plaintiffs negligence was a contributing cause of the accident, then the defendant bears the burden of that proof.
Now, there are some presumptions that are applied by law. If you find that the plaintiff was in good health before the accident but after the accident or the event in this case, the plaintiff had an injury and there is a reasonable possibility that the accident caused the injury, then the law presumes that the accident caused the injury.
A required element of plaintiffs case under any theory of law is that plaintiffs damages be caused by the defendant. A defendant is the legal cause of plaintiffs damages if: the conduct of the defendant is a cause-in-fact of those damages, and secondly, if the damages are within the scope of risk created by the defendant’s duty.
To be a cause-in-fact, the conduct of the defendant must be a substantial factor in causing damage. You will first consider what, if any, conduct of the defendant falls below the standard which the law imposes upon him, or it; you must ask whether plaintiff would have suffered damages “but for” this conduct. If plaintiff probably would have suffered injuries regardless of the defendant’s conduct, then you must conclude that the injuries were not caused-in-fact by the defendant. If, on the other hand, plaintiff would not have suffered in the absence of defendant’s conduct, then you must conclude that defendant did not play a part in plaintiffs injury.
If you find that the defendant’s conduct was the cause of plaintiffs injuries, you must determine whether that injury was within the scope of the risks encompassed by defendant’s duty. Put another way, you must determine whether the duty which defendant breached was designed to prevent the type of harm that actually occurred. If you find the duty was designed to protect plaintiff from some other harm, or that the duty was designed to protect some other potential victim, then you must find that plaintiffs injuries were not within the scope of the risk of defendant’s duty, and you must find that defendant was not the legal cause of plaintiffs injuries.

In Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1400 (La.3/23/01); 782 So.2d 606, the Louisiana Supreme Court explained that the cause-in-fact element of 114the duty/risk analysis usually involves a “but for” inquiry. In the event of concurrent causes of an accident, however, the supreme court has found the appropriate inquiry to be whether the conduct complained of was a “substantial factor” in bringing about the accident. Id.

As can be seen above, the trial court instructed the jury as to causation with statements regarding both the “substantial factor” and the “but for” inquiries. The plaintiff contends that inclusion of the “but for” information caused confusion. While the trial court is required to correctly advise the jury of the correct legal principles, it is not required to use the specific wording preferred by the parties. Gourley v. Prudential Property Ins., 98-0934 (La.App. 1 Cir. 5/14/99); 734 So.2d 940, writ denied, 99-1777 (La.10/8/99); 750 So.2d 969. As can be seen above, the jury was advised of the substantial factor test and we do not find that the inclusion of the “but for” information “misled the jury to the extent that it was prevented from dispensing justice.” Nicholas, 99-2522, p. 8; 765 So.2d at 1023.

Neither do we find error in the instructions insofar as they did not include the plaintiffs requested charge on the “single indivisible injury rule.” The trial court instructed the jury as to fault as follows:

The law requires that you divide responsibility by assigning percentages of fault. If you are convinced by the evidence that the damages were caused solely by one party’s substandard conduct or responsibility, you can return a verdict, and I’m going to give that form to one of you, by assigning 100% to the responsible party. You may assign varying percentages to various parties in this case too, but they must total 100%. In making these determinations, you should consider 11Bboth the nature of the conduct of each party at fault, if at fault, and the extent of the causal relation between conduct and the damages claimed.

Given the plaintiffs continued urging that the plaintiffs injury was caused in two parts, i.e., the initial fight produced the injury to the brain, but the delay in diagnosis/treatment caused aggravation of the damage, we find no error in the trial court’s above instruction regarding apportionment of fault.

Having considered the jury instructions, we find no merit in the plaintiffs arguments.

Motion in Limine

At the time of trial, the defendants filed a Motion in Limine to Exclude Evidence of Future Medical Expenses. This motion referenced the plaintiffs settlement with Dr. Castro, Coastal, Coastal’s insurer, and the PCF, among others. Included in that settlement was a recognition that the plaintiffs claim for future medicals was compromised, settled, and resolved. As PCF’s responsibility for the future medicals has been acknowledged, and satisfied by the settlement, the defendants argued, there should be no evidence of the future medicals permitted at trial. The trial court agreed, finding that the claim for future medicals had been satisfied and that the plaintiffs attempt to recover future medical expenses under EMTALA or under claims not covered by the Medical Malpractice Act would permit double recovery. The defendants point to the Louisiana Supreme Court’s opinion in Gagnard v. Baldridge, 612 So.2d 732 (La.1993), for its discussion regarding the prohibition against requiring a tortfeasor to pay twice for the same elements of damages. The Supreme Court noted that this type of double recovery is in the nature of a punitive damage, which must be provided for by legislation.

|1fiThe plaintiff questions the determination, pointing out that, although the PCF was released in the settlement, all rights were reserved to proceed against Dauterive and its insurer. He contends that the satisfaction of the future medical expenses under the Medical Malpractice Act does not bar his recovery for future medical expenses under EMTALA or torts not arising under the Medical Malpractice Act.

In review of a ruling on a motion in limine, we are mindful that a trial court has great discretion in its consideration of the motion. See Furlough v. Union Pacific R.R. Co., 33,658 (La.App. 2 Cir. 8/31/00); 766 So.2d 751, writ denied, 00-2929 (La.1/12/01); 781 So.2d 556. See e.g., Heller v. Nobel Ins. Group, 00-0261 (La.2/2/00); 753 So.2d 841. The transcript of the hearing indicates that, with regard to the extent of the settlement for future medical expenses, the plaintiff argued:

[W]hat we’ve settled is ... if it’s the PCF’s liability for future medical if the Medical Malpractice Act applies. We did not settle the claims for EMTALA for future medical, and we did not settle the malpractice claims which may not be covered by the Medical Malpractice Act. So, I would say that if there’s anything that they may be entitled to, it would be a credit and not as a total release.

The trial court disagreed, finding that the release of PCF for future medical expenses released their recovery under alternative theories of EMTALA and claims not arising under the Medical Malpractice Act. The trial court referenced Gagnard, 612 So.2d 732, stating that it found the case prohibitive of “double recovery for the same item of damage.” The trial court concluded that with regard to the settlement, “we’ve settled away future medicals, the future element.” Accordingly, the motion in limine was granted, with specific evidence of future medical expenses excluded.

The plaintiff appeals this ruling, asserting again that future medical expenses should be recoverable under EMTALA and claims not arising under the Medical Malpractice Act. On this ground, we find no abuse of discretion in the trial court’s 117granting of the motion in limine due to the supreme court’s prohibition of double recovery in Gagnard. ' What is unclear from the record is whether consideration was given to Dauterive’s exposure to $100,000 in damages in the event it was found liable for malpractice arising under the Medical Malpractice Act. See La.R.S. 40:1299.42(B)(2). While the settlement released PCF for future medicals, rights were reserved against Dauterive. In any event, the plaintiff did not pursue arguments in this regard, possibly due to the fact that if liability was imposed under the Medical Malpractice Act, evidence was presented as to general damages and lost wages which could have exceeded the $100,000 statutory limit. See La.R.S. 40:1299.42(B)(2). Furthermore, even if the trial court abused its discretion due to this possibility, any such error would not now require correction due to the jury’s findings on the merits, and our affirmation of those determinations.

Liability

The plaintiff also contests the jury’s denial of the EMTALA, credentialing, and gross negligence claims. Due to these alleged errors, the plaintiff asserts that the trial court erred in denying his motion for new trial. He contends that, on appeal, it is appropriate for this court to vacate the jury verdict, perform a de novo review of the record, and enter judgment in his favor.

|isln our review of the factual findings of the jury, we observe that a factfinder’s verdict may only be reversed if the record does not contain a reasonable factual basis for the verdict and, based on the record, it is concluded that the verdict is manifestly erroneous. Dept. of Transp. v. Schwegmann Expressway, 95-1261 (La.3/1/96); 669 So.2d 1172.

EMTALA

With regard to the EMTALA claim, the plaintiff contends simply that Dauterive failed to provide a proper screening as is required by the statute. He contends that, in particular, the failure to provide the CT scan, when the circumstances indicated it was required, was inadequate screening. This decision, he argues in his brief, was “an economic decision, not a medical decision.” (Footnote omitted.)

In Spradlin, 98-1977; 758 So.2d 116, the Louisiana Supreme Court reviewed the creation of EMTALA noting that it was enacted in 1986, due to concern that hospitals were “dumping” uninsured patients or those with the inability to pay by refusing to provide services to persons with emergency situations or by transferring those patients to another hospital before the emergency condition was stabilized. The supreme court observed that through the statute, 42 U.S.C. § 1395dd, Congress “narrowly defined the conduct required of hospitals when an individual requests examination or treatment at the emergency department.” Id. at p. 8; 121. The statute establishes two types of “dumping” claims: “(1) failure to conduct an appropriate medical screening examination to determine the existence of an emergency medical condition, and (2) failure to stabilize the emergency condition or to provide an 119appropriate transfer.” Id. at p. 9; 121. It is the first type of claim the plaintiff pursued in this matter.

The supreme court observed that EMTALA has created a cause of action that is to be considered “separate and distinct from, and not duplicative of, state malpractice causes of action.” Spradlin, 98-1977, p. 9; 758 So.2d at 121. Although the claims are distinct, a malpractice claim and a dumping claim may, at times, overlap. Id. See also Coleman v. Deno, 01-1517, 01-1519, 01-1521 (La.1/25/02); 813 So.2d 303. Insofar as the screening claim is concerned, a plaintiff must demonstrate that the treatment rendered at the hospital differed from the treatment received by those who typically are cared for at the facility. Collins v. State ex rel. Louisiana Health Care Authority, 99-2307, 99-2308 (La.App. 4 Cir. 7/12/00); 774 So.2d 167, writ denied, 00-2633 (La.11/17/00); 775 So.2d 439. Furthermore, the required “‘appropriate medical screening examination is not judged by its proficiency in accurately diagnosing the patient’s illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms.’ ” Id. at p. 5; 171 (quoting Marshall v. East Carroll Parish, 134 F.3d 319, 322 (5th Cir.1998)).

Our review of the evidence presented by the plaintiff reveals no evidence requiring a finding that Dauterive failed to provide an adequate screening. While, inj^the end, more extensive testing and observation may have proved beneficial, the jury was aware that the plaintiff presented at the hospital, smelling of alcohol after having been in a bar fight. The degree of lethargy while at the hospital, of importance in deciding whether a CT scan is appropriate, was in dispute at trial. The jury was not required to find that the plaintiff was anything other “alert” or “awake” as noted on the hospital record. In its role as a factfinder, testimony to the contrary could have been discounted. In sum, the jury was not required to accept that the plaintiffs observable condition was of such a degree as to require the CT scan. While at the hospital, he was attended to by both a nurse and a physician and his laceration was sutured. He was delivered for x-rays, which the hospital attempted to perform. The failure to perform the CT scan may have arguably been malpractice, as could have been the failure to complete the entire series of x-rays, but there is no indication that the failure to do so under the circumstances is necessarily an EMTALA violation. While medical judgment may have been found to dictate a higher level of care, there is no indication that the plaintiff was treated differently than any other patient who presented at the hospital with similar symptoms. In fact, the jury was aware of the testimony of Kay Colby, Chief Nursing Officer at Dauterive and the hospital’s former Director of Quality and Risk Management, who denied the existence of any policy to refuse any service to any patient in its emergency room once it is ordered by a doctor. In sum, even in the presence of evidence of negligent care (recall the defendant also asserted malpractice) no evidence presented was so compelling as to prevent the jury [^from rejecting the plaintiffs argument that the hospital rendered an insufficient screening under standards of EMTALA, 42 U.S.C. § 1395dd.

Credentialing

The plaintiff also argued that Dauterive was negligent in failing to properly credential Dr. Castro as an emergency room physician. The evidence indicated that Dr. Castro, a Board Certified Family Practitioner, was credentialed by the hospital for family practice, not emergency room medicine. In support of his contention that this failure to credential Dr. Castro in emergency room medicine was negligent, the plaintiff offered the testimony of Dr. Richard Bucci, accepted by the trial court as an expert in emergency medicine. Dr. Bucci stated that in 1994, it was the practice to credential physicians in emergency medicine. He also explained that, although not every physician who works in an emergency room is Board Certified in emergency medicine, one would expect the physician to have some training in emergency medicine. Due to this testimony, the plaintiff contends, the jury erred in failing to find that Dr. Castro was properly credentialed.

As in any negligence case, the burden is on the plaintiff to establish the standard of care. See Thomas v. Southwest Louisiana Hosp. Ass’n, 02-0645 (La.App. 3 Cir. 12/11/02); 833 So.2d 548. The jury was not required to accept that the plaintiffs evidence established that standard of care. In Natchitoches Parish Port Com’n v. Deblieux & Kelley, Inc., 99-313, 99-314, 99-315, p. 18 (La.App. 3 Cir. 3/22/00); 760 So.2d 393, 404, writ denied, 00-1121 (La.6/2/00); 763 So.2d 601, a panel of this court explained that “expert witness testimony is not conclusive and ... the opinions expressed by experts are generally regarded as advisory in nature. As such, they are not binding on the trier of fact.”

| 22The jury was free to conclude that Dr. Bucci’s testimony as to the standard for staffing emergency rooms did not reflect the standard applicable to Dauterive in 1994. Accordingly, we find no error in the determination that the plaintiff failed to prove that Dauterive improperly credentialed Dr. Castro.

Gross Negligence

The plaintiff argued that Dauterive was liable for what he considers to be the gross negligence of Dr. Castro. His argument in his brief to this court in this regard is as follows: “The conduct of Dr. Castro clearly was grossly negligent. Dr. Castro was told at least twice by Bonnie [that] Darrell’s condition was not due to his being drunk, but he callously ignored her. Ignoring what is obvious is gross negligence.” In Ambrose v. New Orleans Police Amb. Serv., 93-3099, 93-3110, 93-3112, p. 5-6 (La.7/5/94); 639 So.2d 216, 219-20 (citations omitted), the Louisiana Supreme Court explained as follows with regard to “gross negligence,” stating:

Louisiana courts have frequently addressed the concept of gross negligence. Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” “There is often no clear distinction between such [willful, wanton, or reckless] conduct and ‘gross’ negligence, and the two have tended to merge and take on the same meaning.” Gross negligence, therefore, has a well-defined legal meaning distinctly separate, and different, from ordinary negligence.

| ?¿.Our review of the record reveals no evidence requiring the jury to have concluded that the plaintiff was the victim of gross negligence at the hospital. In fact, the state of the evidence did not even require the jury to find negligence on the part of Dauterive, let alone gross negligence.

In sum, we find the above conclusions of the jury to be supported by the record. The associated factual and credibility determinations are best left to the trier of fact. Finding no manifest error, we do not reverse the findings as the plaintiff asserts that we should. Similarly, and due to this finding, we also find no merit in the plaintiffs assertion that the trial court erred in failing to grant a new trial. Neither Article 1972 nor Article 1973 of the Louisiana Code of Civil Procedure required the trial court to grant the plaintiffs motion for new trial.

Exclusion of Evidence Regarding Tax Burden

In his final assignment of error, the plaintiff contends that the trial court erred in excluding evidence of what he contended would be an increased tax burden in the event he was awarded a lump sum award for lost earning capacity. As the resolution of the issues above renders this issue moot, we do not address it.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the plaintiff, Darrell Scott.

AFFIRMED.

PETERS, J., concurs in the result.

JUDGMENT ON MOTION TO RECUSE

The appellant, Darrell Scott, has filed a motion to recuse the panel assigned to hear his appeal and requests that the court hear his motion en banc. The panel he seeks to recuse rendered an opinion affirming the trial court judgment rejecting his claims for damages. The basis of the appellant’s motion to recuse is that, because the panel rendered its opinion rejecting his claims, no member of the panel should consider his motion for rehearing.

As stated in Rapides Parish Police Jury v. Grant Parish Police Jury, 01-2293 (La. 11/16/01), 801 So.2d 1069, “[a] hearing on a motion to recuse is required only if the moving party sets forth a valid ground.” In the matter now before us, the appellant has set forth no valid reason why this panel should be recused other than the fact that the panel ruled against him in his appeal. Therefore, we reject his motion to recuse the instant panel, and do so without a hearing. Id.

AMY, J., dissents and assigns written reasons.

DISSENT ON MOTION TO RECUSE

AMY, J.,

dissenting.

I agree with the majority that the motion to recuse lacks merit. However, I dissent for procedural reasons. I conclude that the motion to recuse is controlled by La.Code Civ.P. art. 160, which relates to the recusation of court of appeal judges. Article 160 provides, in part:

When a written motion is filed to re-cuse a judge of a court of appeal, he may recuse himself or the motion shall be heard by the other judges on the panel to which the cause is assigned, or by all judges of the court, except the judge sought to be recused, sitting en banc.

In this case, the plaintiff, by written motion, attempts to recuse the entire panel as to the application for rehearing. In my opinion, the above article provides for and limits an appellate panel to two options when presented with such a motion to recuse. First, the panel may, if appropriate, grant the motion to recuse. Alternatively, the panel must refer the motion to the remainder of the judges of the court, sitting en banc, for consideration. As I have reviewed the motion and find it mer-itless, I do not find self-recusal appropriate. Therefore, I conclude that the only remaining option is for consideration of the motion to recuse by the remainder of the court, sitting en banc. Accordingly, I respectfully dissent from the majority’s denial of the motion to recuse as I would refer the recusal motion to the remainder of the court for en banc consideration under article 160.

      . Ms. Moore testified that at the time of her examination of the plaintiff, she was a licensed practical nurse.

      . The record indicates that one of the x-rays requires the patient to open his mouth so that the top vertebrae can be seen.

      . Although Bonnie McFarland was originally a plaintiff, pursuant to an April 1997 consent judgment, her claims were dismissed with prejudice.

      . La.R.S. 40:1299.42, entitled "Limitation of Recovery,” provides the “cap” of the Medical Malpractice Act, which the plaintiff argues is inapplicable. It also contains the qualification requirements. The statute provides, in part:
      A. To be qualified under the provisions of this Part, a health care provider shall:
      (1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
      (2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
      (3) For self-insureds, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.
      B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
      (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.
      (3)(a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all liable health care providers, as provided in Paragraph (2) of this Subsection, shall be paid from the patient’s compensation fund pursuant to the provisions of R.S. 40:1299.44(C).
      (b) The total amounts paid in accordance with Paragraphs (2) and (3) of this Subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection.
      E. (1) Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, or in the event the health care provider is self-insured, proof of financial responsibility by depositing with the board one hundred twenty-five thousand dollars in money or represented by irrevocable letters of credit, federally insured certificates of deposit, bonds, securities, cash values of insurance, or any other security approved by the board. In the event any portion of said amount is seized pursuant to the judicial process, the self-insured health care provider shall have five days to deposit with the board the amounts so seized. The health care provider’s failure to timely post said amounts with the board shall terminate his enrollment in the Patient’s Compensation Fund.

      . The certificate further states that “It is further certified that professional liability coverage for ONE HUNDRED THOUSAND $100,000.00 Dollars through the above named insurance company, acknowledges primary responsibility for the indicated period(s).”

      . The affidavit contains the Director’s statement that Dauterive Hospital was a qualified healthcare provider during the periods listed on the certificate as the hospital “submitted the requisite proof of primary professional liability insurance coverage, and having paid the requisite surcharge for excess coverage by the Patient’s Compensation Fund.” She further stated:
      (3) According to the records on file with the Patients’ Compensation Fund, DAU-TERIVE HOSPITAL also purchased additional coverage affording professional liability insurance for occurrences prior to September 1, 1995 and paid an additional surcharge to the Louisiana Patients’ Compensation Fund to preserve DAUTERIVE HOSPITAL'S status as a "qualified health care provider” for occurrences at DAUTERIVE HOSPITAL prior to September 1, 1995.
      (4) By virtue of said coverage and the surcharges paid on behalf of DAUTERIVE HOSPITAL, pursuant to La.R.S. 40:1299.42, DAUTERIVE HOSPITAL was a qualified healthcare provider under the Louisiana Medical Malpractice Act [La.R.S. 40:1299.41 et seq.] with regard to all occurrences at that facility prior to September 1, 1995.

      . The plaintiff’s requested "Charge No. 45", which was not given, states: "a physician [who treats patients in fulfillment of their contractual duties with the hospital] is also a violation by the hospital.[sic]” The plaintiff draws this requested verdict from Burditt v. Dep't of Health and Human Services, 934 F.2d 1362 (5th Cir.1991).

      . The plaintiff requested the jury instructions include the following:
      [Where] ... “two or more persons acting independently are guilty of consecutive acts of negligence closely related in point of time, and cause damage to another under circumstances where the damage is indivisible, i.e., it is not reasonably possible to make a division of the damage caused by the separate acts of negligence, and negligent actors are jointly and severally liable.”

      . Although the plaintiff does not specifically argue that the jury’s finding as to the lack of causation was manifestly erroneous, he repeatedly references causation throughout the brief, asserting that this court, in a de novo review, should find causation. Although we do not perform a de novo review and this issue has not been specifically preserved for review, we do observe that, while the jury found a breach of the standard of care, the jury was not required to find causation of the plaintiff's injuries. Although the plaintiff's central claim of negligence against the hospital was inadequate nursing care, the plaintiff’s manner of presentation was to point to all conduct as insufficient in some way. The jury could have very well accepted that some action or inaction breached the standard of care, but that a deficiency in one of these areas was not responsible for the defendant’s release without more thorough testing.

      . With regard to this claim, 42 U.S.C. § 1395dd provides:
      (a) Medical screening requirement
      In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.

      . The plaintiff presented the records of another patient admitted at the hospital who received more detailed care. However, the other patient arrived at the hospital with congestive heart failure, manifesting different symptoms than those of the plaintiff.

      . Furthermore, the defendant presented the testimony of Theodore Badger, Jr., accepted as an expert in Hospital Administration, who at the time of trial was employed as the Chief Executive Officer of Beauregard Memorial Hospital in DeRidder, Louisiana. Mr. Badger testified regarding the general credentialing process and explained that his understanding of the credentialing process at Dauterive, as explained by Kay Colby, was consistent with his experience with credentialing. He also denied that the emergency room physicians at his hospital were all Board Certified in emergency medicine.


author: i «McClendon, j.

text:
    6444 ASSOCIATES, L.L.C. v. CITY OF BATON ROUGE, et al.
    No. 2002 CA 1779.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Rehearing Denied Aug. 25, 2003.

      J. Kenton Parsons, Terri M. Collins, Baton Rouge, Counsel for Plaintiff/Appellee 6444 Associates, L.L.C.
    Leo J. D’Aubin, Baton Rouge, Counsel for Defendant/Appellant City of Baton Rouge & Parish of East Baton Rouge.
    Before: FOIL, McCLENDON, and KLINE, J.J.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   i «McClendon, j.

By this appeal, the City of Baton Rouge, Parish of East Baton Rouge (“City-Parish”) challenges the trial court’s determination that its rights with respect to a certain section of Ward’s Creek are limited to a servitude of drainage. For the following reasons, we affirm the judgment of the trial court.

On August 3, 1956, Howard and Eleanor Witter granted the City-Parish a “right-of-way for drainage and drainage maintenance purposes” over a certain section of property located in the Third Ward of the Parish of East Baton Rouge in Sections 91, 92, and 93, Township 7 South, Range East (hereinafter referred to as the “Ward’s Creek Righi^of-Way”). In the agreement (hereinafter referred to as the “Witter Agreement”), the property was described as follows:

... said fractional tract or parcel containing 39.6 acres, more or less, being 250 feet in width and following the meandering line of Ward’s Creek, and being taken from the property being designated “Mrs. Eleanor C. Witter”, all of which is more particularly shown as the yellow shaded area on the plat made by the Department of Public Works, City of Baton Rouge and Parish of East Baton Rouge, Louisiana, signed by E.E. Evans, Engineer, dated December 4, 1953, designated Plat # 1, a copy of which is attached hereto and made a part hereof.

The Witter Agreement provided that the location of Ward’s Creek depicted on the plat was determined from recent aerial photographs. The plat did not reference metes and bounds. The Witter Agreement further provided, in part:

It is understood between the parties that this agreement does not convey to the City of Baton Rouge and the Parish of East Baton Rouge any fee title or ownership of the land, the Grantor retaining such ownership of fee title but agreeing hereby that the City and Parish shall have a servitude of right-of-way for drainage purposes over and across the above described property to construct and maintain a canal or canals in accordance with their specifications.

1 ¡¡Pursuant to this clause, the City-Parish conducted construction on the Wards Creek RighL-of-Way, which it completed in 1964.

On April 27, 1994, Phillips Connell Witter, successor in title to the Witters, sold to 5615 Associates, L.L.C. a 34.26-acre tract of land, located in Section 93, Township 7 South, Range 1 East, in East Baton Rouge Parish (hereinafter referred to as the “Subject Property”). The Subject Property is located south of Corporate Boulevard and north of Interstate 10. To the east, it is bounded by Ward’s Creek. Subsequently, the City-Parish approved a flood mitigation plan that involved the removal of dirt from the Ward’s Creek Right-of-Way on the Subject Property for use as fill material on the tract, and 5615 Associates conducted flood mitigation on the Subject Property.

On November 6, 1995, 5615 Associates transferred the Subject Property to 6444 Associates, L.L.C. In August of 1996, 6444 Associates subdivided the Subject Property and, in connection with the subdivision, executed a dedication that read, in pertinent part:

The streets and Rights-of-Way, shown hereon, if not previously dedicated, are hereby dedicated to the perpetual use of the public for proper purposes. All areas shown as servitudes are granted to the public for use of utilities, drainage, sewage removal or other proper purposes for the general use of the public.

The map depicted a 250 foot drainage right-of-way at Ward’s Creek, 125 feet of which was shown to be on the Subject Property.

On August 13, 2001, 6444 Associates filed a petition for declaratory judgment, naming the City-Parish as defendant. By that action, 6444 Associates sought judgment, declaring that the City-Parish’s rights were limited to a drainage right-of-way.

I/The City-Parish answered the lawsuit and filed a reconventional demand, seeking a judgment declaring it holder of fee title to the right-of-way. After answering the reconventional demand, the plaintiff moved for summary judgment. The City-Parish responded with a cross-motion for summary judgment.

After hearing the cross-motions for summary judgment, the trial court rendered summary judgment in favor of 6444 Associates, declaring that it is the fee simple owner of that portion of the Ward’s Creek Right-of-Way that traverses the Subject Property, and that the rights of the City-Parish are limited to those of drainage and drainage purposes only. The trial court further denied the City-Parish’s cross-motion for summary judgment. The City-Parish appeals.

The grant of summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sunrise Construction and Development Corp. v. Coast Waterworks, Inc., 00-0303 p. 4 (La.App. 1 Cir. 6/22/01), 806 So.2d 1, 3, writ denied, 01-2577 (La.1/11/02), 807 So.2d 235.

The following facts are undisputed. Pursuant to the Witter Agreement, in 1956, Howard and Eleanor Witter granted the City-Parish a drainage right-of-way 250 feet in width and “following the meandering line of Ward’s Creek” and retained ownership of the drainage right-of-way. Pursuant to that agreement, the City-Parish conducted excavation of Ward’s |RCreek, which it completed in 1964. As anticipated by the parties to the Witter Agreement, the excavation altered the location of the creek bottom. The flood mitigation work conducted in 1994 also resulted in the relocation of the creek bed. Since 1956, the City-Parish has utilized only the actual drainage right-of-way. It has used that strip of land only for drainage and drainage maintenance purposes.

The plat attached to the Witter Agreement depicts Ward’s Creek as a straight line. The subdivision map of 1996 depicts Ward’s Creek as a straight line, slightly to the west of the location shown on the map attached to the Witter Agreement. The creek meandered at the time the Witter Agreement was executed and continues to meander today. Therefore, the straight lines shown on the Witter map and the map of 1996 do not accurately depict the location of the creek bed.

Although the City-Parish admits in its brief that the actual location of the creek differs from that shown on the 1996 map, it avers that the right-of-way shown on the 1996 map constitutes the statutory dedication of a new right-of-way to the public use for “proper purposes,” expanding the City-Parish’s drainage rights. We disagree. The dedicatory language contained in the 1996 subdivision map applies only to those right-of-ways “not previously dedicated.” The Ward’s Creek RighWof-Way was “previously dedicated” by virtue of the Witter Agreement. Because it was “previously dedicated,” the subsequent subdivision of the property did not effect the Ward’s Creek Right-of-Way. Therefore, the City-Parish did not gain a fee |fiinterest in the right-of-way by the subdivision of the Subject Property in 1996.

Furthermore, the placement of the Ward’s Creek on the 1996 map in a position slightly different from its placement on the Witter plat did not expand the City-Parish’s rights. Although a statutory dedication is properly gleaned from the instrument, the instrument must be given a rational construction. When a rational construction negates The intent of the subdividing landowner, the fact that a reference to the land appears on a map does not, of itself, effect a dedication to public use. Pioneer Production Corp. v. Segraves, 340 So.2d 270, 275 (La.1976); Hospital Service District No. 2 of the Parish of Lafourche v. Community Bank of Lafourche, 2000-1035 p. 6 (La.App. 1 Cir. 6/22/01), 790 So.2d 688, 693. Herein, the Ward’s Creek Righb-of-Way existed and was used by the City-Parish for forty years prior to the subdivision of the property in 1996. The subdivision map of 1996 refers to the area at dispute as “250 Ward Creek Drainage R/W.” The parties agree that the location of the right-of-way shown on that map differs from the actual location of the right-of-way. Considering the entirety of this situation, the filing of this map cannot reasonably be construed to have been intended to effect a dedication of this strip of land for public use. Therefore, we conclude that the Ward’s Creek right-of-way as depicted on the 1996 map is not subject to the fee-vesting effect of the statutory dedication.

Alternatively, the City-Parish directs this court to the Unified Development Code (“UDC”), an ordinance passed by the City-Parish that, in pertinent part, requires a subdivider to include certain dedication language on maps and plats. In relying on this ordinance, the City-Parish asserts that the dedicatory language on the map associated with the Witter Agreement 17does not comply with the requirements of the UDC. Therefore, the Witter Agreement did not constitute a valid grant of a right-of-way, the Ward’s Creek Righb-of-Way was not “previously dedicated,” and by the dedicatory language on the 1996 subdivision map, the City-Parish has fee title to that strip of land. We reject this argument. The provisions of the UDC on which the City-Parish relies were originally adopted and became effective on November 20, 1996, well after the grant of the right-of-way by the Witters. Therefore, they do not negate the effect of the grant of the right-of-way by the Witters. For the foregoing reasons, we conclude that the trial court did not err in granting summary judgment in favor of 6444 Associates.

Finally, in support of its position on appeal, 6444 Associates filed with this court a motion to take judicial notice or to supplement the record. Considering the above discussion, the motion is moot. Therefore, we will deny it.

Accordingly, the judgment of the trial court is affirmed, and the motion filed by 6444 Associates is denied. Costs, in the sum of $969.66, are assessed against the City-Parish.

JUDGMENT AFFIRMED; MOTION DENIED.

      . In its brief, the City-Parish also relies on the dedicatory language contained in a map concerning the subdivision of property adjacent to the Subject Property in support of its position. However, the only issue properly raised before the trial court is the ownership of that part of the Ward's Creek Right-of-Way that is located on the property owned by 5615 Associates. Therefore, we decline to include in our discussion any reference to dedications involving other properties.