Kean Miller

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Health care providers welcomed the changes last year to the Medicare reassignment requirements that allow independent contractor physicians to reassign payment for Medicare-covered services regardless of the site of service to another entity such as a physician group. Prior to these changes, the Medicare reassignment regulations specifically required independent contractor physicians to provide services on a group’s premises if the group wanted Medicare to pay the group directly for that physician’s services.
Continue Reading CMS Comments on Radiology Service Agreements

From the indispensable newsletter of Professor Frank L. Maraist, sage non pareil at the Paul M. Hebert Law Center, comes a pointer to a recent First Circuit Court of Appeal opinion relating to protected medical records.

Article 510 of the Louisiana Code of Evidence establishes the basic privilege which protects a “confidential communication made for the purpose of advice, diagnosis or treatment” of a patient’s “health condition between or among himself or his representative, his health care provider, or their representatives.” This privilege belongs to the patient, to exercise or to waive, as he or she sees fit. Section 510(B)(2) lists a number of exceptions to the privilege.

In Moss v. State, 2004-2160 (La. App. 1 Cir. 6/24/05), 2005 WL 1490450, Ms. Smith and Mr. Moss were both killed in a head-on collision between their respective cars. Mr. Moss’ survivors sued the Department of Public Transportation for a defective highway. The Department urged the comparative fault of the late Ms. Smith – whose estate was not a party to the lawsuit.
Continue Reading Privileged Medical Records and La. R.S. 13:3715.1

If the terms “removal” and “fraudulent joinder” pique your interest, you will want to familiarize yourself with the recent United States Fifth Circuit Ruling in Boone v. Citigroup, Inc., ___ F.3d ___ (5th Cir. 2005), 2005 WL 1581091 (5th Cir. (Miss.)).

In Boone, the Fifth Circuit explained its holding in its earlier en banc opinion in Smallwood v. Illinois Central Railroad Company, 385 F.3d 568 (5th Cir. 2004) (referred to as “Smallwood II”). Essentially, the Boone panel explained that a defense is considered to be a “common defense” under Smallwood II only when the showing or factual basis that demonstrates the applicability of the defense to the resident defendants, also necessarily demonstrates the applicability of the defense to all of the claims asserted against the non-resident defendants.

The Boone court reminded its readers that under Smallwood II, a removal based upon improper joinder should not be allowed when all of the defendants, both resident and non-resident, have interposed a “common defense.” Further, a defense is considered to be “common” under Smallwood II only when the showing or factual basis that demonstrates the applicability of the defense to the resident defendants also necessarily demonstrates the applicability of the defense to all claims asserted against the non-resident defendants.
Continue Reading Boone – Pathfinding in Smallwood

So you’ve built a successful business that provides you a good salary and employment for several of your children. Things are going fine, but you are worried about what happens to the business when you retire in a few years, or die. What are you going to do? (i) sell to that “national group” for cash and a nice consulting arrangement; (ii) sell to several loyal employees who have helped grow the business, but have not participated in management; or (iii) transfer the business to the children working in the business.
Continue Reading Transferring the Family Business to Your Children

Ernie the Attorney recently posted an excellent article on e-discovery, noting the increase in lawyer/client sanctions and general anguish due to ignorance of the range of material subject to discovery, and then how to find it and organize it. Clearly not just about e-mails anymore, electronic discovery offers a huge opportunity for skillful exploitation by…

A plaintiff’s decision to quit her job is within her discretion. But the Supreme Court, in Pennsylvania State Police v. Suders, 124 S.Ct. 2342 (2004), determined that a plaintiff who quits her job after being sexually harassed by her supervisor may be able to benefit in her lawsuit from her unilateral decision.
Continue Reading Constructive Discharge May Be Considered “Tangible Employment Action” in Supervisor-Harassment Cases

The 5 parish area around Baton Rouge (EBR, WBR, Ascension, Iberville and Livingston) is now subject to a new 8-hour ozone standard. The area is classified as being in “marginal” nonattainment [on a scale of marginal, moderate, serious, severe, and extreme] – so that is pretty good – it means we are close to being in attainment. For those of you in the Lake Charles area and New Orleans area – read this too. You are not out of the woods as your areas are barely in attainment and could go into nonattainment if we have a particularly hot year.
Continue Reading Only You Can Achieve Ozone Attainment

The Louisiana Legislature has passed legislation designed to undo the Willis-Knighton decision (i.e. the Louisiana Supreme Court case which abolished the “societal expectations” test, thereby strongly suggesting that doors and toilets, for example, are movable). The bill will not be law until the delays for the governor to veto it have passed.

Here’s a link…