In Susan Orillion v. Crawford, 2005-0559 (La. App. 1 Cir. 9/1/06), 2006 WL 2521450, Orillion disputed the imposition of Louisiana individual income taxes on prejudgment interest received in connection with an automobile accident in 1988. The state paid its half of the damage award judgment in connection with the accident, with accrued judicial interest. Relying on tax laws current at the time, the Orillions paid no state or federal income taxes on their damage awards.

As described by the court, “The issue of whether prejudgment interest was taxable under 26 U.S.C.A. §104(a)(2) came to the forefront in federal court beginning with an unpublished case arising out of Michigan, entitled Kovacs vs. C.I.R., 25 F.3d 1048 (6th Cir. 1994), cert. denied, 513 U.S. 963, 115 S.Ct. 424, 130 L.Ed.2d 338 (1994). It was quickly and subsequently followed by a series of cases that held that prejudgment interest was not excluded from taxation under 26 U.S.C.A. §104(a)(2).” Thus, beginning in 1994 the treatment of prejudgment interest for federal tax purposes became clear. Orillion, however, contended that La. R.S. 47:46 precluded the imposition of the Louisiana individual income tax on prejudgment interest. In pertinent part, La. R.S. 47:46 provides, “gross income does not include: * * * (2) the amounts of any damages received (whether by suit or agreement) on account of personal injuries or sickness * * *.”

Continue Reading State Income Tax on Prejudgment Interest? No, Says First Circuit

The Louisiana Supreme Court has affirmed an order of the Louisiana Public Service Commission establishing a state universal service fee for telecommunications service providers operating in the state. T-Mobile, a wireless provider operating in Louisiana, appealed the LPSC’s order, arguing that the USF fee constituted a tax and, thus, the LPSC lacked jurisdictional authority to mandate the charge. The Supreme Court disagreed, finding that the charge constituted a fee, not a tax, and that the LPSC had the jurisdiction to impose a USF fee under both the Telecommunications Act of 1996, and the Louisiana Constitution.  A copy of the decision is available at the following link: http://www.lasc.org/opinions/2006/05ca2578.pdf

The Centers for Medicare and Medicaid Services (“CMS”) recently issued an advisory opinion on November 6, 2006 regarding the physician recruitment exception in the federal physician self-referral law, commonly know as the Stark Law. CMS specifically addressed whether a physician who would spend up to 20% of their time practicing outside of the recruiting hospital’s geographic service area would meet the relocation requirement of the physician recruitment exception to the Stark Law.

Under the proposed recruitment arrangement, the recruiting hospital would provide the following loans to the physician directly:

(1)      A loan for the payment of the physicians moving and relocation expenses, which would be forgiven after 1 year;

(2)      A loan equal to the physicians first year medical malpractice premium not to exceed $10,000.00, which would be forgivable over 3 years; and

(3)      A loan to repay the physicians medical school loans, which would be forgivable over a 3 year period.

The recruiting hospital would provide no other compensation that either the practice to the physician is joining or to the physician in connection with the proposed recruitment arrangement. In addition, the forgiveness of the loans would be based on the physician meeting certain service and other commitments.

Continue Reading CMS Issues Advisory Opinion Regarding the Physician Recruitment Exception to the Stark Law

In the Louisiana Legislature’s Regular Session 2006, Act 323 changed La.R.S. 40:1299.47 to add Subsection N [full cite- 40:1299.47(N)] to allow for an expedited medical review panel process. The following discussion highlights some interesting changes, but for all elements of the new law as to the expedited medical review panel process, see the entire statute:

Continue Reading Act 323 – Expedited Medical Review Panel Process

The Dilution Statute was enacted as part of the Lanham Act in 1996. The Dilution Statute provides in 15 U.S.C. §1125(c) that the owner of a famous mark shall be entitled to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use causes dilution of the distinctive quality of the mark and to obtain such other relief as provided in this subsection. The courts have been wrestling with the meaning of the terms in the Statute since that time.

On October 6, 2006, President Bush signed the Trademark Dilution Act of 2006 into law to further refine the applicability of the Statute and clarify many of the legal issues. Many of the provisions of the Act are important to note.

First, the Act retitles the cause of action to be for Dilution by Blurring and Dilution by Tarnishment. Presumably, this eliminates the possibility of another basis for claiming dilution. Blurring is defined as an association arising from the similarity between a mark and a famous mark that impairs the distinctiveness of the famous mark. Tarnishment is defined as an association that harms the famous mark’s reputation.

Continue Reading PRESIDENT BUSH SIGNS TRADEMARK REVISION ACT OF 2006

Raymond Ward, who blogs at Appellate Law and Practice, an excellent overview of federal appellate decisions, offers free access to the materials he presented at the Louisiana State Bar Association’s "Bridging the Gap" seminar offered last week in New Orleans. The materials include a concise and eminently useful outline of appellate procedure here, the amendments to the Uniform Rules of La. Courts of Appeal here, an article on how to write an appellate brief, and an article on calculating the deadline for filing an application for supervisory writs.

A recent case out of Louisiana’s Fourth Circuit, Meyers v City of New Orleans, 2005-1142 (La.App. 4 Cir. 5/17/06) 932 So.2d 719, writ den., 2006-1530 (La. 9/29/06) — So.2d —-, 2006 WL 2820822, found that a “settled” lawsuit had abandoned before the settlement was completed, leaving the plaintiff with no case to settle.

Louisiana civil procedure generally provides that a lawsuit is “abandoned” if no party takes a step in the prosecution or defense of the case for a period of three years. Louisiana Code of Civil Procedure article 561 and Clark v. State Farm Mut. Auto. Ins. Co.,  2000-3010, p. 5-6 (La. 5/15/01); 785 So.2d 779, 784 (La.,2001). Acts in the prosecution or defense of the case sufficient to interrupt abandonment typically require some positive action by a party reflected in the Court’s records and directed toward defending or prosecuting the case on the merits. The abandonment is self-effectuating, meaning that it occurs without any need for action by the Court or a party, but a party is entitled to an Order recognizing the abandonment and dismissing the case.

Continue Reading Abandonment of a “Settled” Case?

From Naked Ownership (hey, it’s a genuine Louisiana legal phrase), a law blog maintained by Al Robert, Jr., Ernest Svenson, Raymond Ward, and Todd Slack, comes this post on changes to the Uniform Rules governing Louisiana Courts of Appeal. A copy of the new rules can be viewed here. 

As e-discovery continues its relentless assault upon stodgy traditions, it would behoove one to consider the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, prepared by the Conference of Chief Justices (according to its website, their membership includes "the highest judicial officer of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the territories of American Samoa, Guam and the Virgin Islands."

The Department of Health and Human Services (“DHHS”) Office of Inspector General (“OIG”) and the Centers for Medicare and Medicaid Services (“CMS”) recently released on August 8, 2006 final rules establishing new safe harbors and exceptions for the donation of items and services for e-prescribing and electronic health records to physicians and other providers. These safe harbors and exceptions establish certain conditions under which: (1) health care providers furnishing services that are subject to the Stark Law (e.g., hospitals) may donate to physicians (and certain other recipients) certain qualifying electronic prescribing technology that are necessary and used solely for electronic prescribing; and (2) hospitals and other providers may provide physicians and other providers who furnish services to federal healthcare program recipients with interoperable electronic health records software or information technology and training services.

Continue Reading The OIG and CMS Establish New Safe Harbors and Exceptions to Foster Electronic Prescribing and Electronic Health Records Arrangements

In a three-two decision released today, the Third Circuit has ruled that the $500,000 cap on medical malpractice damages is unconstitutional as failing to provide an “adequate remedy” for plaintiffs as guaranteed under the provisions of La. Const. Art. 1, sec.22.

The opinion was written by Judge Elizabeth A. Pickett, with Judges Billy Ezell concurring in a written opinion and Judge Genovese concurring in the result.

Judge Sylvia Cooks wrote a dissenting opinion and Judge Oswald DeCuir concurred in the dissent of Judge Cooks.

For a copy of the opinion, see the Third Circuit website:

http://www.la3circuit.org/opinions/2006/09/092706/PR09-27-06.htm

Arrington vs.  E.R. Physicians Group, A PMC et al   No. CA-04-01235

And

Taylor vs. Clement,  No.  CA-04-01069