VOL.38_NO. 4_FALL 2003 by Arkansas Bar Association

PUBLISHER

Arkonsas Bar Association Phone: (501) 375-4606

The Arkansas

Fax: (501) 375-4901

Homepage: www.arkbar.com E-Mail: aconaway@arkbar.com EDITOR AnM C0rumNlY

awer

GRAPHIC DESIGN SilrQ Lam/is

EDITORIAL BOARD Philip E. Kaplan,. Chair Judge WLiey A. Branton, Jr. Leigh M. Chiles Milton Fine, [] Morton Gitelman J. Leon Holmes Stuart P. Miller Christopher Travis Brian Anthony Vandiver David H. WiUiams

Vol. 38. NO 4

features

OffiCERS

President Thomills A. Dillily Board of Governors Chair D. Pria Mush.J.11

President-Eled Fred S. Ursery Immediate Past President H. Murray Clayc:omb Secretary-Treasurer William A. Martin Parliamentarian Cindy Thyer Young Lawyers Section Chair Paul Dumas Executive Director Don Hollingsworth

Associate Executive Director Judith Gray

BOARD OF GOVERNORS Steve Bingham Anthony Black Judge Wdey Branton. Jr. Niki Cung Tom Curry Boytt Davis Jeannette Denham Lance Gamer

Robert "Skip" Henry Gwendolyn Hodge Jim Julian Philip Kaplan Sean Keith Chalk Mitchell Frank Morledge Rosalind Mouser Donna Pettus James M. Simpson. Jr. James D. Sprott Eddie Walker Robert E. Young

UAISON MEMBERS Judge Ted Capeheart Steve Shults Ron D. Harrison Jack McNulty Don Hollingsworth Carolyn 8. Wothe"J'OOO De Arbuu Lawyao (lISPS SC64IO) is published quarterly by the Atb.nNs au Association. Periodicals po6Qge fnld at Utde Rock, ArkAnSaS. POSTMASTER: 5nld addreY changes 10 1Jle Arka",u lAwytr, 400 West Markham. Uttle Rock. Arkansas 72201. Subscription pric. to non路rm'lnbn's of the Arkansas Bar AS5Odallon $25.00 per year. Any opinion expressed herein is that of the author. and not necessarily that of the Arkansas Bar Association or 1Jlt ArkanSll$ LAwytr. Contributions to The Arkll".Ju Lawy,r are welcome and should be sent in two COpl6 to EDITOR. The Arka,,'a, Lawyer. 400 West Markham. Uttle Rock. Arbnsu 72201. All inquiries regudlng advertising should be Je'lt to Editor. lJIt ArbJl$ll$ La~, at the a~ addMl. Copyright 2003, Arbnsu Bar Asaodation. All lights reerwd..

8 Report on the 2003 Legislative Session Charles L. Schlumberger

9 The Arkansas Bar Association Legislation Committee Its Function and Operation Charles L. Schlumberger

14 HIPAA for Ostriches or the Otherwise Uninitiated Bizabeth Andreoli, Charles B. Cliett, Jr. and Elisa M. White

26 How the Civil Justice Reform Act Changes Arkansas Tort Law Robert B Leflar

Contents Continued on Page 2

The Arkansas

awer VoL 38. 0 4

in this issue The Power of Your Membership

CLE Calendar

Lawyer Disciplinary Actions

In Memoriam

Arkansas Bar Foundation Memorials and Honorariums

Classified Advertising

columns President's Report

Thomas A. Daily

Ad Index

Executive Director's Report

Don Hollingsworth

CHii) Arkansas Bar Association

400 IV. Markham lillie Rock, Arkansas 72201

HOUSE OF DELEGATES Delegate District I路SE: Ro~n F. Thompson, III Delegate District 2-5E: Katharin~ C. Wilson Delegate District J-SE: lknniJ Zot~r. Jeff Pu~r, Raben $. Jones Delegate District 4-5E: Kathie A. Kimbrdl Delegate District S-SE: Kent J. Rubens Delegate District 6-SE: Chrili1ophe:r M. Morledge: De~te District 7-5E: Buck Gibson Delegate District 8-5E: Howard L Manin DeJepte District 9-SE: Jim Pat FlOWC'r5 Delegate District 10-5E: Oavid L Sims. Anthony AHilJiard Delegate District 11路5E: Richard L Ro~r Delepte District 12-5E: James A. Hamilton Delegate District 13-SE: Robin J. Carroll, James McMe:nis Delegate District 14-SE: Mauhew Kimmd, Amy Frttdman Delegate District IS-SE: Bryan T. MdGnnq, Todd M. Turner Delegate District I6-SE: John T. Vines, J:a.nit M. Evins Delegate District 17路SE: James Ralph Jackson Delegate District I-NW: Edwin N. McClure, Lisa L Kelley, Hardy Croxron, Jason B. Kelley Delegate District 2-NW: Tim Snively, Matthew R. Durrett, Chris R. R芦d. April R~ Shy, Cristi lkaumom, David J. Whitaker, Michad J. Hodson, Charles Harwell, Raymond iblock, Susan Duell-Mitchdl Delegate District 3-NW: Niki T. Cung, Jason A. Martinez., James O. Cox, Ikn H. Shipley, Shannon Blom, Timothy Sharum Delegate District 4-NW: Danid B. Thrailkill Delegate District $-NW: SI~ B. Davis Delegate District 6-NW: John T. TalUm II, Roy Ikth Kelley Delegate District 7-NW: Rhonda K. Wood, Danny M. Rasmussen Delegate District 8-NW: Ted Sande.rs Delegate District I-e: John C. Wyvill, Causley Edwards, Brad Hendricks, David W. lerling, Patrick Harris, Brenda N. SI;allings, Mark H. Allison, David Raupp, Rick Ramsay, Patrick D. Wilson, Valerie Kelly, Gregory L. Crow, William C. Mann, Lacy Kennedy, Harold J. Evans, Colen'e D. Honorable, C. Tad Bohannon, Jerry Larkowski, Amy Lee Siewart, Danyelle J. Walkc=r, Brian Vandivc=r, JdTrc=y Wc=bc=r, Mark McCarry, Randall S. Bueter, Jay Taylor, Beth Deere, Leon Johnson, Marcella Taylor, Rc=becca Denison, Stephen Bingham law Student Representatives: Ikn Wulff, University of Arbnsas School of Law; T:uha Sossamon, UALR William H. Bowen School of Law

2 The Arkansas La"Yer

www.arkbar.com

. .Report I Thomas A. Daily

Four Little Constitutional Amendments for a Bit of Fine Tuning This ovember OUf Association's mem~ bers will be asked to vote their approval of fouf amenclmems (Q our consricurion. All fouf were referred for this vote by your House of Delegates. Here is what and why. In recent years, you have approved a sweeping modernization of our governance. Formerly OUf House of Delegates. a large. diverse body of lawyers. was charged with running the Association on literally a dayby-day basis (with considerable help from our fine staff, of course.) Because that was impractical. an Execueive Council (really an executive commiuce composed of delegates and elected by delegates) began doing that job under the auspices of the House. When we reorganized we transformed the Executive Council into the Board of Governors. We provided for direct election, by district. of governors. and left the House with the responsibility for broad, enduring policy issues. For example, the Association's biannual legislative package is set by the House of Delegates. However, current Article "XV of our constitution still requires an affirmative Vote at a regular or special election of the entire membership before the association can sponsor or even JUSt support a proposed amendment [Q me state or federal constitution. (Paradoxically. no such vote is required if we oppose such a constitutional amendment.) The existing rule is unnecessary and unwieldy. Here is a topical example. Most of us believe that Arkansas' legislative process has suffered severely by legislative term limits so strict that mey virtually man路 date a forever-inexperienced General Assembly. The last legislative session produced a proposed amendment liberalizing these term limits. It is something which we should support and I am sure we will, but we really should have been able to support it from the beginning, while it was still before the Legislature. At one point it was suggested that the proposed amend-

ment should include imposing term limits upon our judges. I, for one, would op路 pose that one with all of my resources. There lies the problem. During the most critical time period (when me Legislature is considering the proposed amendment) there is not enough time to obtain authority for suPPOrt. Further. special elections are expensive. I would rather spend our dues delivering member benefits like Arkansas VersusLaw. The proposed amendmelH putS this authoriry with our Delegates, where it belongs. It is full of safeguards. First, thirtydays' notice to the membership must precede any such House vote. Second, a threefourths' majority is required. Article VII, Section 4 requires the Board of Governors to meer four times each year, whether it needs to or nor. Ofren it does nor need roo These meetings cost those involved time, and the Association money. We propose to reduce the number of required meetings of the Board to three and, if more meetings are needed, call special mee(Jngs. The firsr of our twO annual House of Delegates meetings is held on the Saturday of our Annual Meeting. The schedule for election of new house members almost runs inro mat date, especially when no nomination occurs during me initial election of new house members. When that happens. me vacancy is re-advertised. Then, if there is still no qualified nominee, the vacancy is filled by presidential appointment. By shortening both me time between re-advertising the vacancy and closing nominations and the time the vote irselfby five days each (thirty days to twenty-five days in both cases) we eliminate the time crunch. For several years, we have had a category of Association membership called "Associate Members." Those members are licensed to practice law and in good standing, but their licensing state is not Arkansas. Most of

these members are on the faculty of one of our law schools. Some have simply retired here. A few others are employed as in路house counsel by national corporations in those companies' Arkansas corporate offices. These members are currently required to be Arkansas residents. They pay the same dues as the resr of us and devote valuable time to our task forces, committees and sections. They are not eligible to hold office or membership in the House of Delegates..拢!:. Board of Governors. We propose ro open this class of membership to all licensed lawyers in good standing who are full time employees of business organizations with regular business in Arkansas. Thus, for in-house counsel, the requirement of Arkansas residency will be removed. Some of our smaller, more specialized secrions (Natural Resources comes to mind) will greatly benefit from the participation of these fine lawyers in sectionsponsored publications and ClE programs. The dues base will be slightly expanded. Your ballot on ,hese small changes will arrive 111 ovember. Please vote "yes".

Arkansas Versuslaw User Tips and Tricks As our members learn to use Arkansas VersusLaw some have learned tricks that are worth sharing. To that end, we will publish some of their lips and Tricks in the next few issues of Th~ ArkomtlS Lawyu. Here is one from yours truly. When including Eighth Cir uit cases in a search within the AR Conrenr library. end your query with "and arkansas." You will then almost completely limit your hits to appeals of cases arising in Arkansas, although, occasionally, some other opinions will contain the word "Arkansas." If you are only searching Eighth ircuit cases (as opposed to state

Vol. 38 No. 41Fall 2003

President's Report Continued on page 38 TI,e Arkansas lawyer

What Members Are Saying About Arkansas VersusLaw

ow tha rkansas VersusLa is up and running, I have aropped all of my orner research subscriptions. Although I am of such an age that I may never be entirely comfortable sitting at a keyboard, as opposed to holding a bound volume in my hands, the format is sufficiently user-friendly that even I can walk myself through the tutorial and put the system to work. By the end of the second month, the money I've saved has more than covered the annual cost of a regular and sustaining membership in the Arkansas Bar Association. Arkansas VersusLaw is a great benefit and a great research tool. I thank the Association for making it available. Steve Davis, Harrison I have tried Arkansas VersusLaw and find it extremely helpful. Mary Beth Sudduth, Ft. Smith

I have found Arkansas VersusLaw to be a suitable substitute for other, major computer research providers. Searches are not too difficult to run, results come in just as fast, and you can't beat the price. Most of all, I ran an identical search in Arkansas Versus Law and West/aw and received the exact same published cases in both services. I have confidence in Arkansas Versus Law. Jerry Larkowski, Little Rock I use Arkansas Versus Law almost daily for legal research. Thank you for making access to Arkansas VersusLaw a part of our bar association membership. Paul Gehring, Fayetteville

Arkansas VersusLaw is a great member benefit. Outstanding job by our ssociation. David Bridgforth, Pi e BI I've just started using Arkansas VersusLaw. What a great benefit from he Arkansas Bar Association. f now find myself using-.itmore han Westfaw Jim Crouch, Springdale

Arkansas VersusLaw Is a member benefit provided by the Arkansas Bar Association at www.arkbar.com.

Executive Director's Report Don Hollingsworth email: dhollingswonh@arkbar.com

Your Member Directory Another New Member Benefit It is available 24 hours per day.

It provides attorney contact information that is updated several times weekly. It has a live e-mail link It is only accessible to Association members. "It" is the Member Directory on OUf website at www.arkbar.com. The Member Directory was developed by our Website Oversire Committee which w3nred mem-

bers to be able to access up-to-date comaet information on individual members, as well as see which attorneys in a specific city in Arkansas (or another state) are Association members. The directory includes a live e-mail link for individual members. thereby enabling one to click on that individual and send him/her an immediate e-mail using your computer's e-mail sofrware. The member comact information in the

Directory is name, address, phone, fax and email. Updates to your contact information should be sent to Barbara Tarkington at this office - btarkingron@arkbar.com ,

501-375-4606, 800-609-5668. Minimizing. Some members have the Member Directory minimized on their computer screen during the day, opening a second Internet browser for other purposes. In this way, they are JUSt one dick away from concact information on attorneys they want to reach. Email addresses. Members are getting better about giving us their email addresses and updating them. We now have email addresses for over 80% of our membership. We do not seU or otherwise provide email addresses to other entities. The Member Directory as well as Arkansas VersusLaw are password protected and thereby restricted to currenr members of the Arkansas Bar Association. The first time you visit either of dlese pages on the website. you will be prompted to secure

your password for future access. Please note that you may change your password and that it is the same password for both of these member benefits. A helpful feature of the password system is that once you have logged in to either the Member Directory or Arkansas VersusLaw. you may move in and our of the passwordprotected page to other websites and come back without logging in again, as long as your browser has rem_ained open. Supreme Court Number. It is essenrial to remember that there is not a dash (-) in Supreme Court Numbers. If you enter a Supreme Court Num ber wim a dash or any other extraneous symbols, your log in attempt will fail. Relocated Member List and Organizational Directory. Our traditional Membership and Organizational Directory has been discontinued, saving $20,000. But it is now called the Member List and is located, along with a separate Organizarional Directory, on our website - access it also from the Member Directory link on the tOP menu bar. These are PDF files which you may view and may download for a printed copy_ They are password protected also. Caution. The Member List and Organizational Directory are still only prepared once a year in me fall. They arc not updated as is rhe online Member Directory, as explained above. www.arkansasfindalawyer.comis your Association's online anomey directory for the public. Participation is restricted to members who pay the annual fee of $75. One of its fearures is a link to your firm's

website if requested. Conract Ba.rbara Tarkington for morc information. Lastly, please call me if yOli have questions abom any of these new benefits and changes. II

Do not forget to use/click

"AR State Content" in Arkansas VersusLaw. It is bolded and located at the bottom of the Library Selections list on the left side of the screen. Arkansas VersusLaw has a richer Arkansas content than does the regular VersusLaw content for Arkansas law. For example, Arkansas VersusLaw has Arkansas appellate cases back to 1900 and has the Attorney General Opinions.

Vol. 38 No. 4/Fall 2003

n,e Arkansas Lawyer

The POWER of ~ Arkansas Versus Law provides a unique online library of legal materials that is only available as a benefit through your membership in the Arkansas Bar Association. This specialized material includes Arkansas Statutes, Judicial Opinions, Attorney General Opinions, Arkansas Constitution, Court Rules, and recent decisions from the U.S. District Courts for the Eastern and Western Districts of Arkansas. Arkansas Judicial Opinions date from 1900. Attorney General Opinions currently go back to 1991 and will soon include all opinions from 1973

the present. Your Association and Versus Law will be expanding the

Arkansas legal products during the remainder of 2003. Arkansas Versus Law also includes decisions from the U.S. Supreme Court, federal circuits, all state appeUate courts, state statutes and a growing number of U.S. District Courts. Free ClIsromer service is available co Association members at 1-888-377-8752 (88-VER5USLAW). Customer service hours are M-F, 9:00am. - 7p.111., and Saturday noon to 7:00 p.m. Arkansas VerslIsL1W is a joinr product ofVerslIsLwl and the Arkansas Bar Associarion, and ir is a rrade name used wirh [he permission of Versus Law.

Practice Handbooks Hnv~ it

Your W'flY! Customize Your Library ofAssociation Handbooks to Suil Ytmr Personal Style

Select from among I!ri.nI offerings including [he Arkansas Form Book, HI PAA Handbook, Domestic Relations, Bankruprcy, Probate Law, Handling Appeals or Real Estate Title Standards in Arkansas.

Legislative Advocacy Network Association Members are encouraged to Participate

in [his Electronic

erwork by clicking on Legislative

Advocacy Network at w\yw.arkbaf.com. ParticipantS wiU receive AlertS on Pending Bills wh.ich affect the

Legal Sysrem.

OR Opr for the simplicity of a CD ROM containing anyone or any combination of the following: Arkansas Form Book, HIPAA Handbook, Bankruptcy, Probate Law, Handling Appea.ls in Arkansas or Real Estate Title Standards in Arkansas. The handbooks are also available in the Arkansas Secondary Law Menu from Lexis exisTh1 at www.lexiscom.

Online Member Directory www.arkbarcorn

Access Restricted Most

Association Members

Up~ro-dare and

Accurate Contact

Information for Arkansas-Licensed Atrorneys (whether residing To otdet call 501-375-4606 Ot 800-609-5668, email rhicks@arkbar.com, or visit www.arkbar.com for further information.

6 11,e Arkansas lawyer www.arkbar.com

in Arkansas or our of stare), including LIVE email addresses

our Membership Publications FREE to Members

arkansasfindalawyer

Insurance Discounts

An on-line attorney directory for Association members only. Review the directory by going to www.arkbar.com

Call Rebsamen Insurance ar 501-664-8791 or 888-272-6656 ror

• Annual Mnllbu List and Orga"izational DiTrclory

Associuion discounts on:

Cuidr to ArkonsaJ StntuU of Limi/a/iom

c.JI 501-375-4606 to join.

ClE Seminars at Reduced Cost

• Professional Liability • Group Term Life Insurance • Accident • Hospital Indemnity • Overhead Expense • Disability Income • Long-Term Care • Critical Illness

Delivery Service

tuition!

Call UPS ar 800-325-7000 and identify yourself as a member of the Arkansas Bar Association, or use accoum UCP290001685.

Section Web Pages

Retirement Plan

Most comprehensive statewide

LE program, and

members pay reduced

Section web pages at wwwarkbarcorn.

Click on Professional Resources and men Sections.

ABA Members Retirement Program. Call 800-826-8901 or visit the website at www,abaC(rjrcmc:or com.

Credit Card Program

Annual Meeting

The MBNA Platinum

The

Plus MasterCard includes

Annual Meeting or rhe

a card wi<h <he Atkansas

Bar Association logo. no annual fee, miles plus option. a low APR and trave! services. Call 800-847-7378 for an application.

Association each June is mended by over \,000 Arkansas attorneys and hundreds of fumily members. It is one of the premier

Annual Meetings in the United States.

Tk Arkan= LaUlJ" Nnusbul/rtin

Arkansas Law

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UALR Law R~vj~w Legjsloljv~

lexis-Nexis

On-line legal research from Lexis-Nexis is discounted for members. Visit www.lexis.com or call

800-356-6548.

Summary

Advisory Ethics Opinions It's nOt aJways black and white, In me practice of law, mere's a lot of gray, Your Association's ProfessionaJ Ethics Committee can help. \V,<hin specific guiddines. the Committee will issue an opinion on the member's proposed conduct. There is an administrative charge of $50. For derails visir

The Association maimains the

WW\V,ar kbar.com

call (50 I) 375-4606.

Booklets & Guides • Consumer Law (English and Spanish versions) Senior Citizens/Caregivers Guide Small Claims Courr Atkansas Vererans' Handbook Handbook for Perwnal Representatives Call 501-375-4606 ro order or download from wwwarkbar com

largest and most accurate database of Arkansas attorneys. To purchase mailing labels of members at a discoum,

Bar Center Members can utilize the conference room or reception area at the Atkansas Bar Cemer for diem meetings, depositions and similar matters.

legal Career Center Legal job listings and resume postings at www,arkbar.coffi

Vol. 38 No. 41Fall 2003

TI,e Arkansas 1.3\':Yer

"By--charles I Sch umb~ ger The 2003 legislative session presented many challenges for the Arkansas Bar Association and its members. The session marked the first real experience with the effects of term limits, with 36 representatives and 16 senators - nearly 40% of the entire General Assembly - serving as freshmen. Furthermore, the vast majority of the "veterans" were in fact only serving their second terms; there was very little institutional memory in the group. Additionally, the number of lawyers in the General Assembly was substantially diminished. In the 35member Senate, there were only two lawyers, and only one of them, Senator Jim Luker, was a member of the Senate Judiciary Committee. There were 15 lawyers in the 1oo-member House, with seven on that chamber's Judiciary Committee. Finally, there were several bills that significantly affected the law, lawyers, and the judicial system. This article provides a synopsis of these bills, as well as two measures that did not pass but are expected to be re-introduced in future

sessions.

(A) The Association's Legislation Package. The Association's House of Delegates approved a legislation package consisting of three measures recommended by the Jurisprudence and Law Reform Committee. All of them passed both chambers without a dissenting vote. Act 177 (Senate Bill 153)

amended the Arkansas Probate Code to increase the allowances to surviving spouses and minor children from $2,000 to $4,000 as against distributees and from $1,000 to $2,000 as against creditors. It also increased from $500 to $1000 the maximum amount that can be distributed to surviving spouses and minors for sustenance during the first two months after the decedent's death. Finally, it increased from $5,000 to $10,000 the value of assets that could be sold, mortgaged or leased without notice of hearing. We thank Bill Haught for his testimony before the committees to achieve the bill's passage. The second measure, Act 610 (SB 303), adopted the Arkansas Disclaimer of Property Interests Act. This act is an important addition to the law governing estates, trusts and probate. It prescribes the procedural and substantive law governing disclaimed interests in property, including partial interests, future interests, and rights of survivorship. Section 14 of the act provides important guidance regarding the timing and effect of tax-qualified disclaimers under the federal Internal Revenue Code. The Association thanks Byron Eiseman, Phil Carroll and Bill Haught for lending their expertise and assistance in achieving the passage of this measure.

The third measure, which made numerous technical corrections to the Arkansas Code to make it conform to the provisions of Amendment 80,

Charles L. Sc/;/umbtrg<r is tht chair of tht Arkafljll.f Bar Association! Ltgis/afion Commirtu. HI! is f1 member of Quanttbaum, GrOOIllS, Tiilt & Burrow PLLC in Lictlc Rock. Ht is a gmdualt of Comtll Uni""'ity (BA '76) and Vanderbilt Law School UD 79).

8 TI,e Arkansas Lawyer www.arkbar.com

actually took the form of two bills. Act 1166 (HB 2471) comprises 53 pages and focuses on statutes dealing with adoption and juvenile law. Act 1185 (SB 462) is 118 pages long and covers all other statutes that needed technical revision. We are indebted to the members of the Association's Amendment 80 Task Force and, in particular, Professors John Watkins and Ken Gould for their painstaking work in reviewing the Code and preparing these bills.

(B) Other Acts of Interest to the Bar. In addition to the Association's package, there were several other enactments that are of interest to the profession. This is by no means an exhaustive list, and each member is encouraged to review a listing of the acts by accessing the General assembly's website, www.arkleg.state.ar.us. Some of the acts that should be mentioned here are: • Act 32 amends the new Article 9 of the UCC to re-adopt the "old" version's provisions for perfecting and prioritizing landlord's liens on crops; • Act 623 establishes that where there is a conflict between the internet and hardbound versions of the Arkansas Code, the hardbound version prevails; • Act 1030 abolishes the Rule in Shelley's Case; • Act 1179 empowers circuit and appellate courts to order parties to mediate civil cases. Additionally, Act 1077 deserves spe-

cial mention. This act created the Arkansas Criminal Code Revision Commission, a 19-member body that is charged with the task of performing a comprehensive review of the criminal code. Under the act, the Commission is to provide to the House and Senate Judiciary Committees a draft of legislation proposing changes and corrections to the criminal code. The last such undertaking occurred in 1974. This is a muchneeded development that may result in monumental reform to criminal law, including sentencing and procedure. The act provided that the Association president select one member, and Tom Daily appointed Jack Lassiter of Little Rock. If you practice in the area of criminal law, please contact Jack with any suggestions you may have. Last but not least is Act 649, the socalled "tort reform" law. This measure contains significant changes to the law governing tort litigation, including limitations on the availability of joint and several liability, caps on punitive damages, and significant procedural changes governing tort actions against medical care providers. Due to space limitations and an upcoming, separate article to appear in The

Arkansas Lawyer providing an exhaustive analysis of this act, the particulars of the changes are not discussed here. However, every practitioner in the field of tort litigation should carefully peruse this new law.

(C) Other Bills of Interest That Did Not Pass. There were several measures opposed by the Association that did not pass. Two of them bear particular note because of their impact upon the practice of law and the judiciary, and because we expect them to appear again in future sessions. They are next discussed. Sales tax on professional services. Several bills were introduced that proposed to apply the sales tax to professional services, and to attorneys fees in particular. Due to the need for additional funding for the medicaid, prisons and the public school system and the comparative ease with which sales taxes can be enacted (the legislature may adopt a sales tax by a simple majority vote, whereas other taxes,

support as the session wore on. Ultimately, all of these measures died in committee during the regular session, but none of the budgeting matters were resolved, either. The General Assembly came back for a special session in June to address immediate, non-educational funding needs and opted for additional tobacco taxes and an income tax surcharge. The Governor has announced that another specia I session will be held in December to address secondary education reform and the associated funding issues. The estimated additional cost is in the hundreds of millions, and we believe that the General Assembly will seriously consider any and all funding options - including sales taxes on professional services. Mr. McNulty and the Legislation Committee will keep the Association membership apprised of these developments and will continue to develop strategies in response to any such measures.

Recall elections. SB 378 proposed a mechanism for elections to recall constitutional officers; members of the

such as income taxes, require a three-

quarters majority), we were quite concerned that these taxes would garner

Report Continued on page 10

The Arkansas Bar Association Legislation Committee Its Function and Operation By Charles L. Schlumberger During the course of the 2003 legislative session, several members of our Association inquired about the Legislation Committee, wanting to know how the Committee's membership is selected, what its responsibilities are, and how it functions. Many people also wanted to know how they can become more involved in the legislative process. The composition of the Legislation Committee and its func-

tions. The Arkansas Bar Association's Legislation Committee is established under Article VIII (Committees and Task Forces) of the Association's bylaws. Under section 1(E) of Article VIII, the Legislation Committee is

comprised of nine members: the Association president and presidentelect; the chair of the Jurisprudence and Law Reform Committee (appointed annually by the incoming president); the chair of the Legislation Committee (appointed annually by the incoming president); two at-large

members appointed jointly by the incoming president and incoming president-elect and who serve staggered four-year terms; and three members who are elected by the House of Delegates from the Association's three Bar Districts and serve for two-year terms. The members who served during the 2003 legislative session were Murray Claycomb, Tom Daily, Bill Haught, Charles Schlumberger, Dustin McDaniel, Donna Pettus, Boyce Davis, Cindy Grace Thyer and Mike Wilson. Section 1(F) of Article VIII prescribes the Legislation Committee's responsi-

Vol. 38 No. 4/Fall 2003

Committee Continued on page 12 n,e Arkansas LalIYer

Report Continued from page 9 General Assembly; and district, circuit and appellate judges. Bills of this type have been introduced in past sessions but have always died in committee. To the surprise of many, this measure passed the Senate late in the session and was referred to the House Rules Committee, which recommended its passage. Prior to a vote by the full House, it was re-referred to the Rules Committee, where efforts to amend the bill to alleviate its many flaws failed. Attorney General Beebe also issued an opinion casting doubt on the measure's constitutionality, and ultimately the primary sponsor withdrew the bill and directed it to interim study.

The Association opposed this measure for three principal reasons. First, it unconstitutionally encroached upon the independence of the judicial branch. Second, it was unnecessary because Amendment 66 of the Arkansas Constitution already provides a means for disciplining and, if necessary, removing judges for cause. Third, the bill contained no grounds upon which an elected official could be recalled, meaning that an official could be recalled for any reason, or no reason at all. We believed that such a measure could be used to intimidate al elected officials - not only judges, but also governors and legislators - in situations in which they are required to

make hard decisions on difficult, politically volatile issues. Finally, such a measure creates governmental instability that is detrimental to the interests of the state and its citizens - a point borne out by the current situation in California. We will continue to oppose measures of this sort in future sessions. Hopefully, however, the California experience will demonstrate the many, real-world problems that recall statutes can cause.

Conclusion The

2003

regular

session

was

Report Continued on page 40

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Assists lawyers and judges, their colleagues and families, struggling with the effects of Alcohol & Drug Abuse or Addiction Depression & Other Mental Health Issues Physical Disabilities Aging Issues Confidential Phone 501.907.2529 Confidential Email harbergails@alltel.net Website http;//www.arlap.org 10 TI,e Arkansas l<J''Yer www.arkbar.com

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Vol. 38

o. 41Fall 2003

TI,C

Arkansas lawycr

Committee Continued from page 9 bilities to: (1) support the Association's Lobbyist in promoting the enactment of bills included in the Legislative Package approved under Article X of these ByLaws; (2) support the position of the Association on legislation pending before the Arkansas General Assembly; and (3) consider and decide the position of the Association on legislation which the House of Delegates has not taken official position on and is under consideration or expected to be considered by the Congress of the United States or by the Arkansas Legislature or its interim Committees, or on proposed initiated acts. Subsection (F)(3) also contains additional directives and limitations regarding the Committee's charge, requiring it to: a. establish and maintain a statewide legislative action network of lawyers who will serve as legislative contacts to advocate the Association's position to legislators, and recruit lawyers to be legislative witnesses in support of the Association's position on legislative proposals; attend Committee meetings and legislative sessions when the Lobbyist cannot be present, and perform such other tasks as are reasonably calculated to achieve the Association's Legislative goals. b. not support any legislation which the House of Delegates has rejected within the immediate past 24 months nor oppose any legislation which the House of Delegates has approved within the past 24 months. It shall have authority to make changes in proposed legislation of the Association which do not materially change the intent or the purpose of such legislation and may take a position for the Association on other legislation and proposed legislation under consideration or expected to be considered by the Congress of the United States or by the Arkansas Legislature or its interim Committees. During special sessions, the Committee may sponsor technical corrections to existing law and poll the House of 12

nle Arkansas

La~':Ycr

VV'NvV.arkbar.com

Delegates on substantive matters which have not previously been voted on by the House. c. not take a position on any legislation unless it would have a direct effect on the practice of law or a significant impact on the administration of justice.

The Legislation Committee's process for developing the Association's position on legislation. The Committee meets on an asneeded basis when the General Assembly is not in session. Beginning two to three weeks prior to the commencement of a regular session, the Committee meets weekly, usually on Friday afternoons, for the duration of the session. In addition to the Committee members, the Association's executive director and lobbyist attend these meetings. Also, any Association member may address the Committee by requesting the Committee chair place him or her on the agenda for a future Committee meeting. The Committee also meets in this fashion during special sessions, although its meetings are more frequent, given the compressed timing of special sessions. Of all the responsibilities entrusted to the Committee, the most onerous and time-consuming is the one contained in Section 1(F)(3), under which we are required to develop the Association's position on measures on which the House of Delegates has not spoken. To fulfill this obligation, the Committee reviews and considers every non-appropriation bill that is filed. This is no easy task. In the 2003 regular session, over 2800 bills were introduced. Approximately two-thirds of these bills were non-appropriation bills, meaning that your Committee reviewed over 1800 bills. To do this, we have a system whereby each Committee member is pre-assigned to newly filed bills, according to the last digit of the bill number. For example, one Committee member is responsible for reading all non-appropriation bills ending with the number 1, another is responsible for reviewing such bills ending with 2, and so on. Each Committee member reads his

or her assigned bills and then gives a report to the full Committee at the weekly meeting. In accordance with part (c) of section 1(F)(3), the Committee first determines which bills "have a direct effect on the practice of law or a significant impact on the administration of justice." As one might expect, most bills do not meet this standard, and so the Committee takes no position on those bills. Where bills do meet this standard, the Committee then determines the

Association's position, as it is required to do under section 1(F)(3). That position may be to support, oppose, or be neutral on the bill. Because the Committee is comprised of lawyers from various specialties, we usually have the benefit of having someone who understands the bill's purposes and consequences. However, when the subject matter of a bill focuses on particularly specialized areas beyond the ken of the Committee or its members, we often will refer the bill to the appropriate section of the Association for further review and comment to help us in developing the Association's position. In addition, we consider information that is given to us by Association members who ask to be included on the agenda to address particular measures. In the vast majority of cases, developing a consensus on the Association's position is relatively easy: The diversity of the Committee's composition (coupled, when necessary, with the advice we receive from sections) provides a sound and reliable base for recognizing good bills, bad bills, and bills that are well-intended but need amendment in order to avoid unintended adverse effects. ' The hard situation, of course, is the one in which the bill encompasses subject matter on which different factions of the bar might disagree. On the one hand, the Committee is sensitive to the "big tent" of the Association and accordingly it will not be used to advocate the interests of one group over another; on the other hand, under Section 1(F)(3)(c) the Committee is obligated to develop a position on any legislation that pres-

ents "a direct effect on the practice of law or a significant impact on the administration of justice." The various "tort reform" bills introduced during the 2003 regular session present the prime example of this conundrum. In fulfilling its responsibilities in these situations, the Committee members put their own personal interests to the side and focus on the language of the bill-not the underlying concept or motivations-to determine whether, if enacted, the bill would conform to the Association membership's universal interest in having "good law" that is constitutional, free of ambiguity, and is even-handed, so that it does not undermine the fair administration of justice.

Lobbying and the Legislative Action Network - Your Involvement in the Process. Recognizing the impact of term limits and the diminishing number of attorneys serving in the General Assembly, in 2001 the Association took three significant steps. First, the membership amended Section 1(F)(3) of Article VIII to include, at subsection (a), a requirement that the Legislation Committee establish a statewide legislative action network (LAN). Second, the Board of Governors authorized the Association to hire a full-time lobbyist. Third, the Board of Governors approved an expenditure to subscribe to an internet-based service that members could use to both be informed of legislative developments

Many legislators have told us that the most effective means of educating them on matters of importance to us is through individuals from their communities whom they know. and to contact their legislators. We first hired our lobbyist. A search committee was formed, and from an attractive field of highly qualified applicants the search committee selected Jack McNulty, a former Association president and long-time advocate and servant of the Bar. Jack is currently under contract through June 2005. The next task was to establish the LAN. The Committee members, Jack and Executive Director Don Hollingsworth collaborated on a program to recruit attorneys in each legislative district who had developed relationships with their legislators. Many legislators have told us that the most effective means of educating them on matters of importance to us is through individuals from their communities whom they know. By the session's end we had over 80 active LAN members. We continue to encourage our members to become active in the LAN. If you have a strong relationship with your senator or representative and want to help the Bar Association in its efforts, please contact Jack. His e-mail address is jackmcnulty@lobbyist.com,

and his office telephone is (870) 5345532. Finally, the Association contracted with VoterVoice, a company that specializes in creating "grass-roots" software packages to which organizations such as ours can subscribe. Through this package, Jack and the Committee became "connected" to thousands of Association members, and those members also became "connected" to their constitutional officers and legislators. Of all of the measures we took to improve our presence at the legislature, this was by far the one most readily recognized and appreciated by the membership. We are in the process of negotiating a new contract that will take us through the 2005 session.

Conclusion I hope that this article answers your questions about the workings of the Legislation Committee. I also hope that it demonstrates that in the Committee you have a hard-working group of colleagues who take their responsibilities to you very seriously and who want to hear from you. Again, any member who wishes to address the Committee on a particular piece of legislation may do so by requesting of the chair to be placed on a meeting agenda. Finally, and most of all, I hope that this will motivate all of us to become more active in the legislative process, for the benefit of our profession and our legal system. III

Technical Expertise. Practical Experience.

Vol. 38 No. 4IF.1I 2003

11,e Arkansas lawyer

.for Ostriche$ --

or the otherwise

uninitiated

by Elizabeth Andreoli, Charles B. Cliett, Jr. and Elisa M. White

HIPAA Privacy Rule Compliance: Can

you pass the test? The new federal rules governing the privacy of health information ("Privacy Rules") have bÂŤn in effect for about six momhs now, but there still is a learning curve for the health provider and health insurance indusnies as everyone discovers how these rules affect their everyday operations. I This article first provides background on the Health Insurance Portability and Accountabiliry Act of 1996 (H IPAA), the legislation that led to imple. mentation of the Privacy Rules, and a brief summary of the Rules. The article then rests your knowledge of key Privacy Rule compliance issllC5 by presenting an imaginary set of facts raising these issues and asking a series of multiple choice questions. The article discusses the issues raised by each question and provides the answer. Good luck. Don't cheat.

Background and Introduction The Slated purpose of the Administrative Simplification provisions of HIPAA is fO improve the efficiency and cffcniveness of the health care system through establishment of standards and requiremenrs for electronic trans~ m15Slon of certain heahh information. Electronic tra.nsmission of sensitive information raised privacy concerns, so HIPAA conwned a

provISIon that gave Congress until August 21, 1999, to pass comprehensive privacy legislation. When Congress failed to do so, the law required the Department of Health and Human Services ("HHS") to create privacy protections by regulation. 1-11-15 developed the Privacy Rules, a comprehensive regulatory scheme to control disclosure of protected health information. Although thc Privacy Rules arc the Focus of this article, H IPM's administrative simplification schcmc involves at least three other sets of regulations: (i) electronic transaCtion standards; (ii) electronic data sccuriry rules; and (iii) national identifiers. Entities subject to thc I-IIPAA Privacy Rules (called "covered entities" by the Rule) include hca.lth plans, health Clrc clearinghouses, and health care providers, if the providers transmit he:a.hh information electronically in connection with a "Standard tr:msaction." Standard transactions are certain financial and administrative transactions associated with health care claims or their processing, which HIPAA requires to conform to specified electronic formatS. The Privacy Rules require covered entities t'O adopt comprc:hensive privacy policies and procedures to safeguard protected heaJrh information and to inform and preserve the rightS of the individuals who are the subjectS of protected he:a.lth information. "Protected health informa-

tion" or I)HI is information that may identify an individual and rdates to the past, present, or future physical or menral health condition of that individual; the provision of health care to that individual; or the past, present, or future payment for such health care. The central requirement of the Privacy Rules is that a covered entity may not use or disclose PHI, except as authorized by the patiem or permined or required by the Privacy Rules. The regulations allow a covered emity to use or disclose PH I without written consent or authori1.ation from the patielll lO carry out treatmelll. payment, or health care operations. Health care operations are certain business activities that include obtaining legal. accouming or practice management services; performing quality assurance. utilization review, or imernal auditing; and providing educational or training programs. Uses and disclosures for purposes other than treatment, payment or health care operations are permissible if they are expressly permined or required under the Privacy Rules or if the covered entity obtains the individual patient's written "authorization." In addition, when using or disclosing PHI, the covered entity mUSt make reasonable efforts to disclose the "minimum necessary" PHI to accomplish the intended purpose, except when treating the individual or when amhoriution has been granted.

Eliznbrrb Alldreoli (ufi) practicts IVirb til< IolV finll of MifCb,l~ Willifilm. Stlig. Gaus 6- Woodyard ill Linl, Rock. Arkamas. IVI"re sb, focuses primarily on health-care related corporate and administrative law. She is also a member and vice-chair ofthe ArkamllS Bar Association Health lAw Section. C!Jarus B. Clift(, Jr. pracriefs IVirb rb, IolV firm ofMirc!"II. If/illiarm. S,lig. Gaus 6- Woodyard ill Linl, Rock. Arkamas. fOcusillg 011 b,alrb care and insurance related corporate and administrative law. He is licmud in Arkansas and Texas and practices in both states. He is also a member oftbe ArkamllS Bar Association Health Low Seerion. Elisa M. Whiff, all anoTllry ill Kurak Rock. LLP, Linl, Rock. Arkamas, o/fief. practices in the areas ofhealth care and corporate /nw, [ocusing primarily on the trtmsflCtionai and compliance aspects ofthe health care pmeriee. She is /llso a member and secretflry ofthe Arkansas Bar Association Health Law Section.

14 TIle Arkansas

l~I\'Yer

www.arkbar.com

The PriV3.CY Rules do not pr~mpt all nate laws relating

medical privacy.

HIPAA pro-

Physician meets with Patielll's parentS and tells

Patient. The friend teUs Credemialing Specialist

them the known extent of Patient's injuries and

about the accident and Patient's current medical

vides a "basdinc" for medical privacy that can be

prognosis of condition.

condition, and gives him the tdephone number

further tailored at the stare level. If the

regulations ,ue more restrictive than those rec-

The local newspaper investigates the accident and learns that Patient is a notorious profession-

of Jlatient's parents. Credemialing Specialist calls their home and offers 10 help in any way he

ommended by HIPM. state regulations control. If the state regulations an: more permissive. then HIPAA is the appropriate srandard. 2

al hockey player. A reporter caJJs the Hospital and stares he is writing an article about the collision. Reporter asks aboul Patielll's condition.

can. Over the nexf few weeks, he starlS cuning

st2tCS'

Covered entities arc raking HIPAA compli-

Reporter also states he understands thai Driver

ance seriously, as they are subject lO investigations and enforcement actions by the HHS

might have been intoxicated and asks the hospital representative ro confirm this.

Office of Civil Rights. discussed in morc derail

Patient is covered by Insurance Company

below. Ahhough H IPM does not 3mhorizc pri-

through an employer-sponsored preferred provider benefit plan. Hospilal is under con-

Yate actions for violations of the Privacy Rules, the ~ulations create duties of are with respect (0 PHI. and violation of the Rules undoubtedly will be used as a basis for state law tort actions.

traa with Insurance Company as a preferred provider. Insurance Company requires preauthorization for admissions, so Hospita.l medical staff faxes medical information with a preauthorization form to Insumnce Company's offices.

The Scenario Patient is a 25-year-old man who was riding

Patient has a lengthy hospital stay, and

his mororcycle when he collided with a ar

Utilization Management ("UM")

owned by Passenger and driven by Driver.

Insurance Company asks for medicaJ records to document the medical necessity of Patient

Following Ihe accidem, the police investigate the scene. and Patiem. who is unconscious, is

urse at

Parents' lawn. running errands, and visiting his old friend. Very grateful, Parents allow Credentialing Specialist to use their season tickets for home footbaU games at Patient and Credentialing Specialist's alma mater. After a lengthy hospital smy, Patient's parents admit Patient ro a Nursing Home, where he remains in a semi.vegetative St2te. The Nursing Home asks Hospital to fax a copy of Hospital's treatment records to Nursing Home. One of Patient's treating physicians at the hospital, an internist, is also Patient's personal physician. Personal Physician files a claim with Insurance Company for his services, and Insurance Company's UM urse calls Personal Physician's office and requcslS a list of specific

remaining hospitalized.. UM Nurse reviews the

medical records to document care provided for particular services. Patient had mrely been sick

taken to Hospital Emergency Deparrmcm by

records and takes them to the office of the

prior ro the accident, and Personal Physician's

ambulance. The Ambulance Provider leaves ilS

Insumnce Company's Medical Director ro discuss the marter, leaving the door co the office

Notice of Privacy Practices with the Emergency Deparrmem to give to Patielll, as well as forms

Billing Clerk decides to JUSt copy Patient's entire

open. A Crcdemialing Specialist happens ro be

medical record and let the UM Nurse find what she want's in the file.

Provider can biIJ Patiem's insurance company

passing by the office and SlOpS in his tmcks when he hears Patient's name and brieRy listens

Parents subsequently become co-guardians of Patient's person and estate, and sue Driver and

for emergency services.

He believes that Patient

Passenger for causing personal injury to Patient.

The police are able to identify Patient at the accident scene and notify his parents, who arrive

may be his old friend and fr.nerniry brother

Parents' attorney writes both Hospital and ursing Home for Patient's complete medical

for the Hospital

complete so that Ambulance

at the Emergency Department about one hour later. Patient's mother asks for Patient by name

the conver52tion.

from college. and he becomes very concerned. Credemialing Specialist checks his training materials and rea.lizes he can't djsclo~ Patient's

and is tOld that he has been taken to surgery. Mother gives billjng clerk Patient's insurance

PHI oUlSide the company.

That evening, he

calls another old fnterniry buddy and asks if he

information. The Emergency Department

has heard about "'anything happening"' to

records. With the request for records, attorney encloses an authorization signed by both Parents along with an affidavit that ParenlS are Patient's next路of-kin. Nursing Home forwards the Request for Records to ilS anorney to review for

This new handbook is an analysis of which Arkansas laws are preempted by the Health Insurance Portability and Accountability Act of 1996 as implemented by the Privacy Standards promulgated recently by the Department of Health and Human Services. The analysis was prepared by members of the Association's Health Law Section. The handbook is available for $50 to Association members, and $85 for non-members. It is available in hard copy or CD-ROM. Orders should be placed with the Arkansas Bar Association, 400 W. Markham, Little Rock, AR 72201; (501) 375-4606, (800) 609-5668.

Publication cost sponsored in part by contribution from Mitchell, Williams, Selig, Gates & Woodyard, 1'L.L.c. Vol. 38 NO. 4/Fall 2003

The Arkansas la"yer

validity of the authorization. Anomey tdls Nursing Home Administrator to not release the records until Attorney can obtain cvidence of Parents' leg2! power to 2uthoriu: disclosure. The next day, a person claiming to be Parents' anomey shows up at the Nursing Home asking for Patient's records. While there, he corners Nurse's Aide and asks her about the quality of nursing care Patient is receiving. He tdls her he has an authorization on file allowing him to talk to her. urse's Aide refers him to Nursing Home's Privacy Officer. Driver's anomey subpoenas Patient's records from Hospital and ursing Home, and then, upon request by Passenger's anomey, gives a copy of Patiem's records to Passenger's anorney. During Patient's nursing home sray, Parents tell ursing Home AdministratOr that staff members are not providing the necessary therapy, and consequently, Patient is not making the progress Parents belicve is possible. Mother asks for a copy of Patient's medical records. Based on Mother's complaint, Administrator conducts an investigation and files a report of alleged neglect with the State Survey Agency. Surveyors come to the Facility and ask to see aU Patient's records. In addition, they ask to see all investigation reportS involving neglect by Nurse. A5 they are leaving, the surveyors encoumer a person alleging (0 be Parents' attorney, who asks them for a copy of their written findings. Nursing Home's internal investigation shows that uese has nOt been providing Patient's therapy as ordered by Patient's physician. \Vhen questioned by Administrator, Uf$( explains that she has been distraaed from her job duties because she is involved in a fierce child.custody suit with her ex-husband. The Administrator

16 The Arkansas la"yer

www.arkbar.com

now un ersrands why she received a subpoena from Ex·husband's anorney requesting Nurse's pcsonnel records, including Nurse's medical information maintained by the ursing Home. When Ex·husband's anomey shows up at the Nursing Home to collect urse's IXfSOnnei records, Clerk unwittingly gives him Patient's records, believing him to be Parents' attorney. Whe'n Ex-husb.and's .attorney realizes he' has Patiem's records, he sends Parents a lener of condolence along with his business card. Parents are very angry about the disclosure of Patient's records to Ex-husband's attorney. Paf('nts also are very upset about an unexpectedly large bill from Hospital, showing no payment at all from Insur.ance Company. Parents, feding overwhelmed at this point, ask Patient's older sister 10 figure OUt why Insurance Company hasn't paid. Sister drives to Insurance Company's offices and demands to see someone who can tell her why her brother's claims are not being paid. Before talking with her, Customer Services Manager asks to see Sister's driver's license, then calls and speaks with Mother, with whom she has spoken on several occasions and whom she knows to be Patient's Personal Representative because of documentation re· ceived by Insurance Company. Mother provides Patient's aCCOlim number and social security number, verifies Sister's identity as a sibling of Patient and indicates that she wantS Insurance Company to discuss the claims issue with Sister. Customer Services Manager researches the mat· ter and tells ister that Insurance Company has not received a claim for the days of service cov· erc~d by the Hospital's bill. Sister then demands to sec "cvery piece of palXr you have about my brother." Cusromer rvices Manager tells SiSter

that this request must be in writing, and that producing the records could take at least 30 days. Sister fills Ollt a request for access to the records and leaves. Upon review of the investigation of alleged neglect, ursing Home's Quality Assurance Committee decides (0 hire Consultam to investig-He, further, uese's care of residents in the Home. Consultant comes [Q Home and reviews all records IXrtaining to residents under urse's care. Consultant also interviews Staff who have worked with urse, and residents who reside on urse's assigned wing, or their families. Consultant completes her investigation and writes a repon of findings with recommendations to the Quality Assurance Comminee.

The Test OTICE OF PRIVACY PRACTICES AND ACKNOWLEDGEMENT 1. Ambulance Provider acted properly in leaving its Notice of Privacy Practices for the unconscious Patient with Emergency Room. a. False, because Emergency Room is not the patient. b. True, if Emergency Room agrees to make the Notice available to Patient, and Ambulance Provider documents why it did not receive an acknowledgment of the Notice from Patient. c. False, because Ambulance Provider did nor obtain an acknowledgment from Patient or Patient's personal representative. d. Both a. and c. Overview of issues. With very few excep· tions, such as inmates, patients have a right to know how a covered entity will use and disclose PHI, and what the covered emity's legal duties are regarding PHI.3 Notice is given in a written document, usually c.alled a "Notice of Privacy Practices," upon the patient's first encounter with the covered entity. The Privacy Rules dictate sp«ific content of the otice and PHI may nOt be disclosed. in any manner that is inconsistent with this otice. The Notice must be made available' t'O all patients initially and upon a material revision. As if this were not enough, health care providers also must make a good faith efTort to obtain a written acknowl· edgement from patients that they were offered a copy of the Notice. If the covered entity is unable to obtain this acknowledgement, it must document the reasons no acknowledgement was obtained. Health plans do not have to obtain this acknowledgement. In {his case, the Ambulance Provider, Hospital, and Nursing Home and any other providers involved in Parient's carc, such as pharmacies or therapists, all must ofTer the patient a copy of their respective Notices and

.--------_.1. make a good faith attempt ro obrain an Correct Answer: d. It is appropriJre for rhe Patient or Driver. The statement regarding acknowledgmenr. Insurance Company would Emergency Department to disclose that Patient Driver's srate of inroxication is PHI and have been required to provide the Notice at was in surgery because Mother asked abour Hospital cannot disclose ir under (hese condi~ Patient's initial enrollmcnt into irs plan, but Patient by name. It is also appropri:ue for a hos- lions. would not have had to obtain an acknowledg- pital spokesperson to gIve the newspaper USES AND DISCLOSURES TO PERSONS ment. reporter general information abom Paliem's INVOLVED IN PATIENTS CARE Correcl Answer: b. In an emergency, rhe condition, such as the srarement in answer b. 3. Which disclosures to family members were covered entity muSt provide the Norice as soon lr is not appropriate, however, for Spokesperson improper under the Privacy RuJe? as practicable after emergency treatment. 4 The ro disclose any orher medical information about a. Emergency Departlllent Physician's discloAmbulance Provider left a copy of the Norice , - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , wirh rhe Emergcncy Department, and this is permined by the Rules, if the Emergency The Law Firm Departmcnt agrees to makc rhe Norice available to rhe patient. As an alternarive, rhe Ambulance Provider could mail rhe Norice ro of Parienl's lasr known address. The Ambulance Provider is not required to obrain an DAVIS, WRIGHT, CLARK, BUTT acknowledgment if rhe encounrer is an cmergency.s & CARITHERS, PLC The Privacy Rules do not prohibil covered entiries from disrriburing their Norices as part of other mailings. 6 For example, Insurance Company may include irs Notice with irs policy. A covered entity thal e路mails irs Notice may include additional informarion in rhe e-mail, as long as the Notice is nor combined wirh an Aurhorization form in the same document.? USES & DISCLOSURES FOR FACILITY DIRECTORY PURPOSES 2. Which of the following disclosures wouJd be proper disclosures under the provisions on facility directories in the Privacy Rules? a. Emergency Room's Physician rells Mother thar Patienr is in surgery. b. Hospital spokesperson rclls Reporter that Patient is in seriolls condition, bur provides no orher specifics. c. Hospital spokesperson rells Reporrer that Driver was legally imoxicHed according to blood tests, but provides no other specifics. d. Both a and b. Overview of issues. A covered entity may use or disclose PH I for directory purposes as long as rhe patient is informed in advance of the use or disclosure and has been afforded an opporruniry ro agree or object. 8 Provided there has been no objection, if a person asks about a patient by name, the covered entiry is allowed to disclose (a) the parient's location in the provider facility; and (b) the patient's condirion described in general terms as long as it does nOt convey specific medical infor路 marion. In addition, members of the clergy may have access ro directory information, including religious affiliation, even if they do nOt ask for patients by name.

is pleased to announce that

Casey D. Lawson (V. of A. Law '03)

J.R.

Carroll (U. of A. Law '03)

Tisha M. Bartlett (V. of A. Law '03)

have joined the firm as associates

Sidney P. Davis. Jr. Tilden P. ("Chip") Wrighr III Constance G. Clark Wm. Jackson Burt II Kelly Carithers Don A. Taylor John G. Trice Laura J. Andress

Mark W. Dossett Courtney P. Gilbert Tameron C. Bishop Eric R. Gribble Bradley O. Shepherd Casey O. Lawson J. R. Carroll Tisha M. Bartlett

P.O. Box 1688 19 East Mountain Street Fayetteville. AR 72702 (479) 521-7600 www.daviswrightlaw.colll

Vol. 38 No. 4/Fall 2003

The Arkansas Lawyer

sure of patient's health status to Parents. b. The police depanment's disclosure to Parents

Personal epresematives are discussed below. The pplice force is not a covered entity gov路

L_'I__~t~h:a~I~P~a~l~ie~n~l:...:h~a~d:...:bee:::~n:...:in::...;a:n::...;a:c~c;;id~e~n;;l~an;;;;d;.....;e;;rn;;ed:;;:.~b:lJy. the Privacy Rules, and so its disclosure transferred

Hospital.

is nOt improper because the Privacy Rules do

Correct Answer: d. Ambulance Provider did not violate the Privacy Rules when it left forms with the Hospital ro complete so that Ambulance Provider could seek reimbursement for its services, because a patient's authorization

c. Insurance Customer Service Manager's dis路 closure of claims information to Sister.

nOt apply. NO AUTHOIUZATION FOR

d. None of the disclosures were improper under

TREATMENT, PAYMENT, HEALTH CARE

the Privacy Rule. Overview of issues. A covered enriry may

OPERATIONS 4. Which of the following providers should

disclose to a family member, other relative, or a dose personal friend of the patient, or any other

obtain a HIPAA-compliant authorization before disclosing Patient's PHI in the fol.low~

person the patient idemifies, PH I that relates directly to that person's involvement with the

ing manner? a. Ambulance Provider and Hospital before dis-

patient's care or paymenc of the patient's care, if

closing records conraining PH 1 when they

the patient is given an opportunity

object to

transfer Patient to another health care

of medical inFormation. 12 Because HIPAA does not require a consent or authorization, Hospital need nOt obtain a HIPAA.compliam authoriza-

the disclosure and does not objea. 9 If the patiem is not present or lacks capacity to object to the disclosure, the covered entity may disclose

provider. b. Hospital and Nursing Home before disclosing PH J to their respective atrorneys to

form of consent it had been using before April 14,2003. "Authorizations" are discussed below.

that information that is directly relevant to the

obtain legal advice on responding to the sub-

person's involvement in the patient's care, if, in

poenas, because the lawyers are not covered

Neither Hospital nor Insurance Company violated the Privacy Rules in the Hospiml's dis-

the exercise of professional judgment, the covered elllity determines that it is in the patient's

entities. c. Hospital before disclosing PHI to Insurance

closure of medical records, and Insurance Company's use of those records, to authorize

best interest to have this information disclosed. Correct Answer: d. one of these disclo-

Company for preauthoril.ation and medical necessity determinations, beC3l1se such dis-

sures is improper under Ihe Privacy Rule. Because Mother is furnishing Patient's billing

closures do not fall within the definition of "health care operations."

information, hospital may disclose payment

d. None of the providers need authorizations to

information to Mother. Also, it is appropriate for Physician to disclose to Patient's parents the

make these disclosures. Overview of issues. A patient's authoriza-

Hospital and Nursing Home are permitted to disclose Patient's PHI to their attorneys with~

nature of Patient's injuries and Patient's progno-

tion is not required for uses and disclosures

sis. This disclosure is in Patient's best interest, so that his parents can make an informed con-

made for treatment, payment, or health care operations ("1'1'0").11 This is true, whether the

out an Authorization because this disclosure falls within the health care operations exception for

scm to further treatment and transfers. Customer Service Manager at Insurance

use or disclosure is for the covered entity's TPO

is not required for disclosures made for payment

or whether the covered entity is disclosing it to

purposes. Likewise, Hospital did not violate the Privacy Rules by disclosing Patient's PH I ro Nursing Home for treatment purposes.

The

Arkansas Department of Health, however, requires hospitals to obmin a "written consent" from the patient or legal guardian for disclosures

tion. Rather, it may continue

use whatever

Patient's hospital admission or to review the medical necessity of Patiem's continuing hospital stay. Such uses and disclosures are for payment purposes under the Privacy Rule, not for health care operations. 13

conducting or arranging for legal services. 14

MINIMUM ECESSARY 5. Which of the following disclosures vio-

Company also properly disclosed claims infor-

another covered entity for 1'1'0. If the discla-

lates the minimum necessary rule?

mation ro Sister, after verifying Sister's idemity and involvement in payment for Patient's care and verifYing that Patient's MOlher, his personal represenmtive, had no objections to the care. 1O

sure is for another entity's health care opera~ tions, however, disclosure is permined without a patient's authorization onryifbodl entities had a relationship with the patient.

a. Nursing Home's disclosures to Consultant, because the PHI disclosed was not limited to Ihe PHI of patient, the alleged subject of the

1'1(1!V""I(l]ulll1g111VVI

abuse.

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..... 'Wll,tll"\ 111 [tH.lll"!ll.ll \LIllJIIK (rLJ,lldlllg ,lIld ..... ,Ild\

John E,

MeAllister~

RE.

SmmlltUy of Academic & Pt'ofessiomd Experience Registered Professional Engineer in 3 stales. 9 years of experience as president of large dislributor specializing in all types of safety equipmem, major emphasis on metal forming and stamping. 11 years of experience as president of company involved in repair and rewinding of eleclric mOtors and manufacture, sales, installation ancl servicing of electrical cOlUrol p:mels for industry. 14 years of experience with General Electric Co. in engineering and industrial sales. Earned BS-Eleclrical Engineering in 1947. Complete curriclllum vitae and references on request. John E. McAllister. 3 Palisandro Drive. Hot Springs Village, AR 71909-4613 Phone: (501) 922-1709' Fax: (501) 922-41n

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ace e s sA, ka n s a s. 0' g Iso s Vol. 38 No. 41Fatl 2003

n,e Arkansas Lawyer

I 1-: b. Disclosure by Personal Physician's office to Insurance Company of Patient's entire medical record, because Ihe disclosure exceeded the scope of PHI requeSted. c. Hospital's disclosure 10 Nursing Home, if Hospital did nOt provide the minimum PHI reasonably necessary for l ursing Home ro provide skilled nursing care:: to Patient. d. All of the above. Overview of issues. The Privacy Rules require covered entities 10 make reasonable drom to limit PHI to the:: minimum necCSS2ry to accomplish the inlended purpose of its requeslS for PHI from other covered entities, or for itS own uses and disclosures.1 5 The minimum necessary rule docs nOt apply to requests or disclosures of PH I by he::alth care providers for rreatmClll, disclosures 10 Ihe patiem, uses or disclosures authorized by the patient or personal representative, disclosures made to the Secretary of the Department of Health and Human Services, or uses or disclosures that are required by law. To mC(t its minimum necessary obligation. a covered emity must idclllifY persons or classes of persons in itS workforce who need access to PHI to carry out their job dUlies and then limit chose persons' access co the minimum amount necessary for their duties. 16 The covered emity may rely on represe::l1tations that the reque::st for PH I is the minimum necessary if the requcst is from

another covered entiry, public official, or a professional who is a member of the covered emiry's workfor or a business associate and is asking for records in order 10 provide professional services. 17 However, a covered emiry may not request, use or disclose an entire medical record, excrpt when the emire medical record is specifically juslified as Ihe amoum reasonably necessary to accomplish the purpo of the request, use or disciosure.1 8 Correct Answer: b. Personal Physician's Bil.ing Clerk violated the minimum necessary standard by responding to a request for specific records with disclosure of the emire medical file. Billing Clerk would have been jUSlified in sending P;niem's emire medical file only if he had recrived a reqUCSI from Insurance Company's UM Nurse that sought the entire file and provided a specific justification for why disclosure of the entire file was necCSS2ry. Hospilal's disclosure of records to Nursing Home was for treatment purposes, and the minimum necessary rule does not apply. However, the minimum necessary rule does govern disclosures to Nursing Home's workforce and [Q its bu~iness associates, such a~ Consultant. The Nursing Home disclosed PHI to the Consultant hirrd to help investigate Nurse's behavior and actions IOwards all residents that she cared for, nOI JUSt her actions [Qward Ilatiem. The disclosures to Consultalll were for quality assurance

purposes (which full under health care opera~ rions) and rd:ucd only [0 the task she was contracted to perform. The disclosures thus complied with the minimum necessary rule.

ADEQUATE SAFEGUARDS 6. Which of the following statements are true?

I. UM urse and Medical Director did not violate the Privacy Rules because they had a reasonable expectation that Credentialing Specialist, who had received training and was an employee of the company. would nor use or disclose PHI improperly. II. CredcntiaJing Specialist did nO( violate the Privacy Rules because he did not aanally disdose PHI outside Insur:mce Company. III.UM urse and Medical Dirccror violated the Privacy Rules by not utilizing a physical safeguard-shutting the door-that was available (0 them. IVCredentialing Specialist may have received inadcqu:uc training materials if the materials emphasized only improper disclosure of PH I. a. I and II

b. III and IV c. II and III d. 1 and IV

Overview of issues. A covered emity must have in place adequate administrative safeguards (such as training and policies), physical safeguards (such as locked me cabinets and closed or secure doors) and technical safeguards (such as ...- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - . . . . . , limiting access to compmer files) to protect the privacy of PHI from any intentional or unintemional disclosure that would violate the Privacy Rule. 19 A covered emiry also must take reasonable steps to safeguard PH I to limit incidemaJ uses and disclosures made pursuant ro an otherwise permissible use or disclosure. 2o As discussed above, a covered enriry must Engineering Consultant determine the minimum :amoum and rypes of p.o. Box 3338 PHI an employee neais 10 perform his or her State University, AR 72467 job duties and take steps 10 limit the employ(870) 972-2088 (870) 972-3948 FAX ee's access to PHI accordingly. omixon@navaio.astate.edu Correct Answer: b. UM urse and Medical Director should have ShUl lhe door ro the

ELECTRICAL ACCIDENTS Paul D. Mixon, PhD., PE.

Electrical Accident Investigation and Analysis, Con tact Cases and Electrocu tions, Electrica I Inju ries, Property and Equipment Damage, Electrical Fires, Safety Codes ( EC,

ESC, UL), Expert Witnessing

for Plaintiff and Defense Related Cases.

20 The ArkJns"s L""yer

www.arkbar.com

Medical Direaor's office before discussing Patient's PH I 10 prevem unintended disclosures to other employees who did not need to know the information. Indeed, some health plans may decide to bar or limit Ihe access of employees such as Credenrialing Specialist, who has no need for PH I relating to utilization management, from the emire UM Deparrmelll. HHS has emphasized that what safeguards arc reasonable will vary from covered emiry to covered entity, depending on the size of the emiry and the financial and administrative burden of implementing particular

Table of Contents

3 •

President's Report

4 •

Profile of the Arkansas Bar Foundation

5 •

Foundation Funding

5 •

Commitment to Education

6 •

Scholarships

7 •

Special Projects Grants

8, 9 •

Fellows of the Arkansas Bar Foundation

10 •

Donors

Recognizing Excellence

•

12 •

Board of Directors

2. Arkansas Bar Foundation

President's Report This has been a challenging year for the Arkansas Bar Foundation as we were confronted with a loss of operating rev· enue from rental of the Arkansas Bar Center to the University of Arkansas. Nevertheless, we were able to continue our mission, including the award of 59 scholarships to students at the Arkansas law schools. This brings the total amount of scholarship awards over the past fifteen

years to almost $550,000.00, benefitting about 650 recipients. The Foundation now administers endowed scholarship

funds totalling almost $700,000.00. Two new scholarships were established this year, the Sebastian County Bar Association Scholarship and the Ernest G. Lawrence, Jr. Scholarship. The Horace McKenzie Scholarship was renamed the Horace McKenzie and James McKenzie

Scholarship. In addition to scholarships, some $35,(X)() was awarded to special projects furthering our goals of improvement and fadl itation of the administration of justice,

promoting legal knowledge and education, and supporting the preservation of historical items of legal significance. Progress was made towards dealing

with the Arkansas Bar Center. A badlyneeded new roof was installed. Fairly accurate estimates of the cost of renovation and other alternatives have been obtained, allowing the establishment of fund-raising goals to continue allowing the Foundation to provide a home to the Arkansas Bar Association that we can all be proud of and a revenue stream to sup-

Teresa Wineland, President, Arkansas Bar Foundation

Ann Dixon Pyle continued her invaluable service as Executive Director of the Foundation with the assistance of Joyce Bobbitt. I want to thank them as well as the other officers, the directors, the com· mittee chairs and members, and all Fellows who gave of their time and talents this year to continue the work of the Foundation. I particularly want to thank incoming President Ron Harrison, who has agreed to lead the Foundation during the

challenging year ahead and whose skills and dedication will ensure that the goals we are setting to secure the future of the Foundation are met. Thank you for the opportunity to serve as your President, and for your support during this year and in the next few years which will be so important to the Foundation.

port its operations.

We welcomed 10 new Fellows this year, bringing the total number of Fellows to

S25. The number of Sustaining Fellows is 178. A drive to recruit new Fellows is being planned in conjunction with the fund-raising drive.

Annual Report 2003

• 3

Profile of the Arkansas Bar Foundation

THE ARKANSAS BAR FOUNDATION was established in 19S8 to support efforts

President, the Immediate Past President of

at improving the administration of justice.

the Foundation and the Chair of the Trust Committee. The Officers of the

The Arkansas Bar Foundation, which is

Foundation are the President, Vice

classified as a tax exempt organization under Section 501 (c) (3) of the Internal

President, and Secretary-Treasurer, who are

Revenue Code, is a charitable organization

elected by the Board for one-year terms. Members of the Board are elected at the

with a mission to promote educational, lit-

annual Foundation membership meeting.

erary, scientific and charitable purposes which are more specifically described as follows: 1

To improve and facilitate the administration of justice.

To prornote legal study and research, diffusion of knowledge of the law and continuing education of lawyers.

3 t To publish and distribute addresses, reports, treatises and other literary works on legal subjects and to acquire, preserve and exhibit rare books and documents, objects of art and items of historical interest having legal significance or bearing on administration of justice.

The seventeen-member Trust Committee is composed of experienced lawyers who serve six~year terms. Two are appointed by each President and confirmed by the Board. Other members are the Foundation Officers and the Deans of the two Arkansas law schools. The Trust Committee manages the Trust Fund to generate income for the good works of the Foundation. Only interest earned on the Trust Account is used. A separate operating account pays the cost of running the Foundation.

The Arkansas Bar Foundation funded the building of the Arkansas Bar Center, located at 400 West Markharn, Little Rock, Arkansas, which has been the location of the Foundation and the Association since 1974. The building is wholly owned by the Foundation, but space is rented by the Arkansas Bar Association, UALR and other offices. The Bar Center has a formal conference room which is frequently used by lawyers from around the state for depositions and meetings. The open lobby area is a perfect site for receptions and larger meetings. The Arkansas Bar Foundation is governed by an eighteen member Board of Directors. The Board is composed of Fellows elected by the Foundation membership frorn each of the state bar districts plus the Arkansas Bar Association

4. Arkansas Bar Foundation

Arkansas Bar Foundation 400 West Markham Little Rock, Arkansas 72201

501,375.4606

800,609.5668

Foundation Funding For fiscal year 2002-03, the Arkansas

investment income from the trust fund

Bar Foundation approved grants, scholar-

which has been built by contributions and

ships and program allotments of benefit

Fellow's pledges and is used solely for the

to the profession and the public.

good works of the Foundation. This illus-

Scholarships and projects of the Arkansas

tration reflects allocations for the 2002-03

Bar Foundation are financed through

year.

~---",,------Awards/Recognition

.---''<------

Law-Related Education Programs

11%

Foundation Merit Scholarships and

Foundation Professorships

21%

Special Projects Grants

29%

Endowed Scholarships

37%

"The Arkansas Bar Foundationis fiscal year begins on July 1 of each year and ends on June 30.

Commitment to Education The Arkansas Bar Foundation contributes support to the two Arkansas law

cant contributions to serving the Bench and Bar of Arkansas.

schools. In addition to the many endowed named law school scholarships

ARKANSAS BAR FOUNDATION

and the Arkansas Bar Foundation Merit

PROFESSORS OF LAW Professor W. Dent Gitchel, UALR William H. Bowen School of Law

Scholarships awarded to deserving students at each school, the Foundation also approved funding in the total amount of

$24,350 in the 2002-03 trust budget for the following: Arkansas Bar Foundation Professorships; Law Student Moot Court Competition; and, Law Review writing awards. The Arkansas Bar Foundation has established an Arkansas Bar Foundation Professorship at the University of Arkansas School of Law and the UALR William H. Bowen School of Law. One outstanding faculty member from each school is selected to hold this designation of Arkansas Bar Foundation Professor of Law and receives a salary supplement upon this designation. The criteria for selection is excellence in teaching; excellence in scholarship in Arkansas Law; and, signHi-

Professor Robert B Leflar, University of Arkansas School of Law Other program allocations include funding appropriated for the Arkansas Bar Association and Arkansas Bar Foundation Annual Awards. The Arkansas Bar Foundation Trust Committee, which administers an endowment fund for the

Continuing Legal Education (CLE) Department, approved funding in the amount of $8,130 to be utilized to off-set costs for three programs sponsored by the Arkansas Bar Association Continuing

Legal Education (CLE) Department -- the Bridging the Gap Seminar; Training in Versus Law; and, Production of Professionalism Videotapes.

Annual Report 2003

â&#x20AC;˘ 5

Scholarships Each year, the Arkansas Bar Foundation awards approximately 40 endowed law school scholarships to students

at the University of Arkansas School of Law and the UALR William H. Bowen School of Law. In addition, the faculty of each of the two law schools are allotted three scholarships for students who show potential and who are deserving of financial award. These Arkansas Bar Foundation Merit Scholarships are funded by the Foundation in the total amount of $7,500 and have produced fine lawyers who otherwise may not have been able to afford the costs of law school without the Foundation's assistance. Scholarship recipients were honored at the Arkansas Bar

Foundation Mid-Year Scholarship Dinner which was held at The Little Rock Club on January 31, 2003. University of Arkansas at Fayetteville School of Law 2002-03 Scholarships Scholarship Awarded

Recipient

Arkansas Bar Foundation (In honor of Sebastian County Bar,

U.M. Rose, Mike Gorman & Edward L. Wright)

Judy Barton

Arkansas Association of Women Lawyers (In honor of Ruth Huskey Brunson) Joe C. Barrett

Bogle-Sharp R. A. Eilbott, Jr.

Erin Cullum

Raney English Conner Eldridge Tamla Johnson

Conner Eldridge

Vincent W. Foster, Jr.

Friday, Eldredge & Clark Edward Lester Austin McCaskill

Rebekah Kennedy Jeremy Green Sean Brister

Mary Rice

Horace and James McKenzie*

Judge John E. Miller Judge William Overton Col. C. E. Ransick Rather, Beyer & Harper The Shackleford Scholarship

Ruthie Hagan

Justice George Rose Smith

Kris Knox Jamie Fowler

Seth Haines

Alex Guynn Alane Dale Nick Arnold

Smith, Stroud, McClerkin Dunn & Nutter (Dunn, Nutter & Morgan, LLP) M. Jeff Starling>

Kendra Buford Jonathan Macke

David Solomon

Judge Thomas Clark Trimble

C. R. Warner

Mariana Collins Alison Lee Ben Poole

Harry P. Warner

Bernard & Bud Whetstone Wilson & Associates Ethics Scholar

Emily Lackey

Judge Henry Woods

Maurice Rigsby Brad Lovan

Arkansas Bar Foundation

(Merit Scholarship)

Steven Lewis

Jessica Middleton

UALR William H. Bowen School of Law 2002-03 Scholarships Scholarship Awarded

Recipient

Arkansas Bar Foundation (In honor of Sebastian County Bar,

U.M. Rose, Mike Gorman & Edward L. Wright) Arkansas Association of Women Lawyers (In honor of Ruth Huskey Brunson) Guy Amsler, Jr.

Bogle-Sharp John H. and Ruth H. Brunson

Margaret Johnston Staci Carson Ray Pierce

Matthew Wells E. Charles Eichenbaum

Jennifer Olson

Brittany Jefferson Lori Burrows Brandon Lacy Harold Wayne Young Regina McCrea Carmen Mosley

Brandon Lacy April Minor Regina McCrea

Mindy Loveday R A. Eilbott, Jr. Friday, Eldredge & Clark J. Smith Henley Judge John A. Fogleman

John Young Stephanie McLemore Joseph Sweere Stephanie McLemore

James H. Larrison, Jr.

Mindy Loveday Jason Kelly Scarlett Boyce Trella Sparks

Justice J. Frank Holt Edward Lester Brian MacMillan

Col. C. E. Ransick Rather, Beyer & Harper

Brian Carter Tasha Sossamon Sarah Greenwood Danna Young Sara Williams Danna Young Joseph Sweere

Rose Law Firm

U. M. Rose C. R. Warner Harry P. Warner

Bernard & Bud Whetstone T.K. Smith

Roxanne Tomhave Wilson Wilson & Associates Ethics Scholar

Judge Henry Woods Arkansas Bar Foundation (Merit Scholarship) > Will be awarded in the spring William A Eldredge Award

Emily Abbott

Nlkl Cung

Trella Sparks Christian Boesl Brian Carter Jennifer Olson Leslie Ligon

Special Projects Grants

The Arkansas Bar Foundation provided

projects represents the Foundation's com-

special projects grants totaling $36,443 to programs during the 2002-03 year. Funding for the following legally-related

mitment to its educational and charitable mission to improve the administration of justice.

Legal Aid of Arkansas, Inc. Equal Access of Justice Community Education Project

$ 3,443

Arkansas Bar Association Mock Trial Committee

$ 6,500

Mock Trial State and National Competition

Arkansas Volunteer Lawyers for the Elderly "Working Together: Legal Help for Senior Arkansans" Brochure

$ 4,000

$12,500

Arkansas Bar Association

"A Sacred Trust," 2003 Annual Meeting program $ 2,000

Arkansas Supreme Court Historical Society

Arkansas Supreme Court and the Civil War Exhibit $ 5,000

Arkansas Attorney General's Office "Smart Choices for Better Chances" videotape

$ 3,000

The Department of Arkansas Heritage Declaration of Independence Exhibit/Road Trip at the Old State House Museum

The Arkansas Bar Foundation is pleased to announce the establishment of two new

scholarship funds during the 2002-03 year: The Sebastian County Bar Association Scholarship

and The Ernest Lawrence Scholarship

Annual Report 2003

â&#x20AC;˘ 7

FELLOWS OF THE ARKANSAS BAR FOUNDATION Outstanding lawyers in the State of Arkansas are invited to become Fellows of the Foundation. Upon invitation, a Fellow must contribute or pledge to contribute an amount designated by the Foundation Soard. The current financial requirement to become a Fellow is a pledge of $1,500, which is payable over a three or five year period. Upon receipt of the pledge and initial payment, the attorney is designated a Fellow After the pledged contribution has been paid in full, the Fellow's picture will be displayed in the Hall of Fellows at the Arkansas Sar Center. This list represents the current 525 Fellows of the Foundation as of April 30, 2003. Those Fellows whose names are highlighted in bold are recognized as newly designated Fellows for the 2002-03 year. SUSTAINING FELLOWS While investment income from the Trust Fund principal funds the charitable and educational purposes of the Foundation, a separate operating account pays for the day to day costs associated with administering the Foundation. In addition to rent from tenants in the Arkansas Sar Center, a primary source of operating funds is through Sustaining Fellowships. Any Fellow of the Foundation who contributes $75 annually may become a Sustaining Fellow. We appreciate the support of our 178 Sustaining Fellows. Names marked with a "." represent Fellows who were also Sustaining Fellows as of April 30, 2003.

Julius C. Acchione Richard B. Adkisson Charles Greg Alagood Edwin B. Alderson, Jr. H. William Allen R. Ben Allen Guy Amsler, Jr. E. M. Anderson Overton S. Anderson Philip S. Anderson R. Keilh Arman Morris S. Arnold W.H. "Dub" Arnold J'" L. Ask,w, III Richard B. Atkinson Virginia Atkinson E. leRoy Autrey Lawrence H. Averill, Jr. Donald H. Bacon

Carlton Bailey Frank H. Bailey Nancy H. Bailey Kenneth B. Bairn Charles \Y/. Baker James P. Baker, Jr. Roy L Baker, Jr. E.J. Ball Wilklm K. Ball Don K. Barnes Ralph C. Barnhart W. ChrislOphcr Barrier Ben T. Barry Sherry I~ Ban ley David F. Banon Roben Banon Samuel R. Baxrer R.T. B<ard, III John R. bier Mike Beebe Joe D. Bdl Paul B. Benham. III Joe Benson Sanford L. &shear, Jr. Edgar E. Ikthdl Sam . Bird Eric W. Bishop H. David Blair James B. Blair Tim Boe Paul R. Bosson Ted Boswell William H. Bowen Edward Borce Wayne Boyce Comer Boren, Jr. 8. Arkansas Bar Foundation

Thomas M. Brdmhall Ellen B. Brantley William C. Bridgfonh Bill W Bristow Edward W Brockman, Jr. Charles A. Brown Gerald Brown Robert L. Brown Thomas E. Brown C. Bramley Buck C. Douglas Buford. Jr. Tom A. Buford Dale L. Bumpers Dan M. Burge Larry W. Burks Kevin R. Burns Richard C. BUller, Jr. William Jackson BUlt II James A. Bultry F. Wilson Bynum, Jr. John R. Byrd Richard J. Byrne Rob<n D. C"b< John C. Calhoun, Jr. Worth Camp, Jr. George E. Campbell Claude Carpenter, Jr. Thomas M. Carpenter Phillip Carroll Daniel R. Caner Jean T. Caner . PaulaJ. C=y . Roben M. Cearley, Jr. Jack S. Cherry, Jr. Sandra Wilson Cherry Lawrence E. Chisenhall, Jr. B;Il S. Clark \X!illiam M. Clark, Jr. W. Dane Clay H. Murray Claycomb Hillary Rodharn Clinton Ralph M. Cloar, Jr. Eldon F. Coffman Charles T. Coleman Robert C. Complon Waller K. Compton Barry E. Coplin Ben Core Nate Couller J. Scon CovinglOn Kenneth W Cowan James O. Cox Kevin A. Crass Michael H. Crawford James E. Crouch

· James D. Cypert Thomas A. Daily Roy E. Danuser Jim Darr, Jr. John A. Davis, III Sidney I~ Davis, Jr. Roben T. Dawson Barry Deacon J.e. Deacon Beth Deere Gerald L. Delung Rebecca J. Denison Robert L. Depper, Jr. J'y W. Dickey, Jr. \'V.G. Dinning, Jr. Philip E. Dixon Roben E. Dodson Robert I~ Dougherty Darrell D. Do\'er James F. Dowden Ted N. Dmke Winslow Drummond 'Iimolhy O. Dudley Phillip J. Duncan James M. Dunn Winford L. Dunn James Tresler Dyke B. Michael Easley John C. Echols Charles H. Eddy DOll A. Eilbotl G. Thomas Eisele Byron M. Eiseman, Jr. Don R. Ellion. Jr. · George D. Ellis · Jeffrey Ellis · John R. Elrod W.W. Elrod, 11 William H. Enfield Stephen Engstrom Lewis E. EpIc)'. Jr. Roben R. Estes Gary L. Eubanks Audrey R. Evans Mike Everen Lindsey J. Fairley Phillip B. Farris Jackson Farrow, Jr. William Lee Fergus J. Michael Fitzhugh Vietor A. Fleming · John A. Fogleman · Julian B. Fogleman John F. Fomer, Jr. limothy Davis Fox

Charles Frierson, III Rob<n F. Fussell W. Dale Garren M. Morrell Garhright Katherine e. Gay Pamela B. Gibson Sam E. Gibson Manin G. Gilbert · John P. Gill Marion S. Gill C. Joseph Giroir, Jr. W Dent GilChel Morwn Gitclman Roger A. Glasgow David M. Glover Charles S. Goldb<rger Charles W. Goldner, Jr. Ray A. Goodwin NaThan G. Gordon Alben Craves, Jr. John R. Graves Karhlyn Graves Jud;th H. Gmy J. W. Grern, Jr. John e. Gregg Richard E. Griffin Ronald L. Griggs Mark W. Grobmyer Wayne Gruber Michael E. Hale M;las H. Hale, 111 John T. Haley, Jr. O. Wendell H,lI, Jr. Don F. Hamilton Donis B. Hamilwn Herman L. Hamilwn, Jr. Fr.mk S. Hamlin Swan W. Hankins John T. Hardin David M. Hargis Jolm N. Harkey David K. Harp Searcy W. Harrell, Jr. Eugene S. Harris James E. Harris Ron D. Harrison S. Reid Harrod, Jr. • John T. Haskins · Richard Hatfield William D. Haught Claude S. Hawkins. Jr. M. Steele Hays Jimm L. Hendren Donald H. Henry Roben \YI. Hem)'

E. H. Herrod Sam Hilburn E. Ken! Hirsch William H. Hodgc D"id A. Hodges Henry Hodges IUneasler Hodges, Jr. Curtis E. Hogut' Cyril Hollingswonh Don Hollingsworth Bill R. Hollo.,y M.Jo< Holmes · Jack W. Hoh. Jr. • Robtn M. Honea Grogory M. Hopkin. • Jr:nniffrr M. Horan Marthew Horan Robert E. Hornberger Phillip D. HoUi Dorolhy Y. HOMed EJ. H"",II. Jr. D. Michael Hucbb.ar, Sr. Don R. Huffman Annabelle Climon Imber IUndall W I.hmael Hermann h'cster Donald T. Jack, Jr. John H. Jackson IUndolph C. Jackson Shw)' Jackson Lton N. Jamison Alston Jennings, Jr. AlslOn Jennings Bradley D. J<sson John M. Jewell W. Horace Jewell Glenn W. JOIlCS, 1r. Louis B. Jones, Jr. M. Samuel Jones, III

Robert L.Janes, Jr. Rohen L. Jones, III W Wilson Jones Jim L. Julian Philip E. Kaplan · Eugene Kelley • William H. Kennedy, III , J.L. Kidd, Jr. , Judson C. Kidd John N. Killough · Jos<ph E. KilpalCick, Jr. · Mikt Kinard Donald K. King Harold L. King John S. Kiuerman Pna G. Kumpt H. &ker Kurrus Sunl')' R. l.2ngley David . ~r Sam l...astr , John T l.2vey • Ike Allen uYt'S, Jr. Ldand F. Ltatherman Charies R. Ltdbetler Thonus D. La:fbeuer R,ob(n B I...tAar Marklum UsIC'! Alice F. Lighde Srark Ligon Gary E Liles Ruth LindS<)' Danielle Limker W. Kirhy Lockhan Floyd J. Lofton Edwin L Lowther, Jr. Patty W. Lueken Jama M. Luffman Diant' S. Mackey Edward S. Maddox Phil Malcom Howard L. Manin Richard L Martin

William A. Martin Michael H. Mashburn Tmy L. Malhews Charles D. Matlh~ David R. Malmev.'S Slephen A. Marlhews Ronald A. May S. Huhen Mal'es, Jr. Richard L. MaY' Rohin L. MaY' Eugene J. MazUllli Hall McAdams, III Ausrin McCaskill James E. McCJain, J I. Hal'''' C. McCi<rkin Sidney H. McCollum Ed W McCorkic Bohby McDaniel Lucin<b McDaniel Harl)' E. McDermolt, Jr. · James A. Mc1.2ny, III Jama Bruce McMalh Phillip H. McM..h Sidn,), S. McMath Toney D. McMillan Ikn C. McMinn D. Malcolm MeN,;r, J r. , Jack A. MeNulry D. L. MclUc Margaret B. Meads Russ M«ks David F. Menz H. Maurice Milchell Michael W Mitchell Mark A. Moll Sand" B. Moll Ed.,rd O. Moody , James M. Moody Charles Mooney, Sr. · Dew')' Moo,., Jr. • Harry Truman Moore Jama L. Moore, III James W Moore John B. Moo,., Jr. Richard N. Moot(~, Jr. Charles A. Morgan Stcphen E. Morl')' Kennelh R. Mourton Rosalind M. Moustr Wm. Kirby Moustr Ltt J. MuldrllW Waher A. Murray Richasd S. Mus< Ronald G. Naramorr ally N<a1 E. Sheffield '<Ison Charles R. Nesrrud David Newbern George H. Niblock Raymond L iblock Wj'Ck Ni.bet, Jr. R. Gary Nutler Mike A. O'Brien Bohby Ltt Odom Conrad T. Odom Richard P. Osborne Thomas L. Ovcrhry Charles C. Owcn William LOwen Chris L Palmer Michael O. Parker Nicholas H. Panon William L Pauon, Jr. Richard L. P«I Edward M. Penick Samuel A. Perroni Donna C. Penus E. Lamar PellUs Norwood Phillips John M. Pickert George E. Pike, Jr.

John M. Piuman Charles E. Plunkw Odell Pollard David M. Powtll Donald E. P"",allct William I. Prewert David H. Pr),or Thomas B. Pryor Donald C. Pullcn SIC"en W. Quattlebaum John W Raines Michael R. RainwJlt'r Louis L Ramsay, Jr. Richard L. IUmsay C.E. Ransick Brian H. R.l.tdiff Gordon S. lU,h", Jr. , J. Thomas IUr · Stephen M. Rasoner · David Rees Richard A. Reid James R. Rhodes, III IXn E. Rice • Elton A. RiC'·es. III Richard W Roachell And"" L. Roar John B. Robbins Marl< Rohem Susanne Robens Thomas E. RobertSOn H. Clay Robinson Spencer F. Robinson Judith Rogers Charles B. Roscopf • Charles D. Roscopf • Louis Rosen Jeff M. Rosenzweig Robert D. Ross Robert R. Ross Beverly A. Rowlen E1sijane T. Roy Kent J. Rubens Herhen C. Rulc, 111 Donald S. Ryan J.E. Sandcrs Daniel K. Schiem~r Eug~ne L Schiemer Don M. Sehnippcr Isaac A. ScOIt, Jr. Mary Davies ScOlt Frank B. Sewall Dennis L ShackJeford John M. Shackleford, Jr. John K. Shamburger · Stephcn M. Sharum · J. L. Shaver, Jr. J. Michael Shaw Kennelh R. She.min William F. Shennan Seo'ry Shively Roben Shulrs SIC"en T. Shults Harold H. Simpson, II · James Marlon Simpson, Jr. Jack Sims Ted C. Skokos Rodney E. Slacer Ho.,rd L. Slinbrd Ikd A. Smi,h Donald H. Smith Douglas O. Smi,h, Jr. Laura H, Smith lUy S. Smith, Jr. Rohen D. Smi'h,III Frank Snellgrove, Jr. David Solomon Jama V. Spencer, I II · James D. Sprorl Gale B, Stewart Jean D. Slockburger William M. SlOcks

, Thomas S. StOne O.H. SlOrc)',1I1 . Thomas S. Sw:runan Jos<ph A. Snodc . John F. Slroud, Jr. Paul Sullins William H. Sutlon limOlhy R. Tarvin Rex M. Teny William L. Terry Let Thalheime:r Marvin D. Thaxton Hoyt ThollUS Roben F. Thompson Ray ThorRlon Danny Thrailkill Thomas P. Thrash John R. TIsdalc Win A. Tnfford Roben D. Trammell N. Wall. Trimble Edgar J. Tyler Fml S. Ursery D.wid 8. Vandergriff A. Glenn Vasser Roben C. VitlilOW Eddie H. Walker, Jr. WJ. Walker James R. Wallace Larry C. Wallace G. Chris Wah hall • John J. Watkins Frank L. Walson, Jr. John Dewey Warson • Timolhy F. Walson, Sr. James E. West Bud B. Whetstone Frank B. Whilh<ck Norman Wilkinson Chris E. Williams Richard A. Williams Robert H. Williams W Jack Williams, Jr. Jennifer Wilson-Harvey Ralph E. Wilson Roben M. Wilson, Jr. William R. Wilson, Jr. Russell B. Winburn Teresa M. Wineland Carolyn B. Wilherspoon Tom D. Womack Jo< D. Woodward Richard H. Woonon Jacqueline S. Wrighl , Rohen R. Wrio/tt, 111 · Susan WebberWrighl Twy E W}~nc W Kelvin Wyrick

Cary E. Young Damon Young H. David Young Paul B. Young Roben E. Young

Annual Report 2003

t 9

Donors The Arkansas Bar Foundation acknowl-

03 year. This list represents gifts, not

edges with grateful appreciation the

including pledge and Sustaining Fellow

receipt of memorial gifts, scholarship con-

payments, received from July 1, 2002

tributions. honorariums and other dona-

through April 30, 2003. We thank you for

tions to the Foundation during the 2002-

your support.

W. Christopher Barrier

Don and Rose Pullen

Steve Bauman

David and Karen Baim Reagler

Beaver Water District

Rebsamen Insurance

Comer Boyett, Jr.

Max and Judge Ellen Brantley Mr. and Mrs. William Jackson Butt, II

Charles B. Roscopf Charles D. Roscopf Roscopf & Roscopf. PA

Leah Caradine

Dr. and Mrs. Joseph Rosenzweig

Randy Coleman

Judge Elsijane 1. Roy

Cathi Compton

Sebastian County Bar Association

Cross County Bar Association

Mr. and Mrs. David Solomon

Mr. and Mrs. Jack C. Deacon Mr. and Mrs. Winslow Drummond Justice and Mrs. Robert H. Dudley

Judge John and Marietta Stroud, Jr. Walls Trimble Fred Ursery Judge William R. Wilson, Jr. Wilson & Associates, PLLC Dr. Robert R. Wright Judge Susan Webber Wright

George D. Ellis Stephen Engstrom Justice John and Annis Fogleman

Judge Robert Fussell Martin and Betty Gilbert Mr. and Mrs. John Gill Jo-Ann Goldman Judith Gray Barbara Halsey Hardin, Jesson & Terry, PLLC Don Hollingsworth Joe and Claire Holmes

Hyden, Miron & Foster, PLLC Justice Annabelle Clinton Imber Louis B. Jones, Jr.

Sidney H. McCollum McKenzie, McRae, Vasser & Barber, PLLC Ja'Tles A. McLarty Leigh Baim Mansberg and Danny Mansberg W lIiam A. Martin Maurice Mitchell Judge James Mixon

Judge James M. Moody Marjorie Niblock B. Jeffrey Pence Phillips County Bar Association

Judge John Pittman

Arkansas Bar Foundation

Recognizing Excellence ZOO3 Annual Awards These awards are given jointly

by the

Arkansas Bar Foundation and Arkansas Bar

Association and presented during the annual bar meeting in Hot Springs.

OUTSTANDING LAWYER AWARD

Woodson W. Bassett III Given in recognition of excellence in the practice of law and outstanding contributions to the profession.

OUTSTANDING LAWYER-CITIZEN AWARD

Senator Dale L Bumpers For recognition of outstanding participation in and excellent performance of civic responsibilities, and for demonstrating high standards of professional competence and conduct.

C. E. RAN SICK AWARD OF EXCELLENCE Darrell D. Dover Given in recognition of extraordinary service to the legal profession.

JAMES H. McKENZIE PROFESSIONALISM AWARD

Howard W. Brill Recognizes sustained excellence through integrity, character and leadership to the profession and the community which garners the highest honor to the legal profession.

SPECIAL AWARD FOR DISTINGUISHED SERVICE IN THE PURSUIT OF JUSTICE

Judge George Howard, Jr. OUTSTANDING LOCAL BAR ASSOCIATIONS Recognizing outstanding activities which enhance the position and standing of the legal profession.

Pulaski County Bar Association Sebastian County Bar Association St. Francis County Bar Association ARKANSAS BAR FOUNDATION WRITING AWARDS LEGAL WRITING Marcia Mcivor "Jurisdiction Counts in Custody Matters"

Arkansas Lawyer, Fall ZOOZ GENERAL WRITING Bettina E. Brownstein "It's Time to Make Jury Instructions Understandable"

Arkansas Lawyer, Fall ZOOZ The contents of this report reflect activities of the Arkansas Bar Foundation

from July 1, ZOOZ through April 3D, ZOO3. Annual Report 2003

â&#x20AC;˘ 11

2002-03 BOARD OF DIRECTORS Officers President Vice President Secretary- Treasurer

Teresa M. Wineland Ronald D. Harrison Sherry P. Bartley

EI Dorado Fort Smith Little Rock

South & East Bar District 2003 2003 2004 2004 2004 200S

Lucinda McDaniel Teresa M. Wineland Michael H. Crawford Stanley R. Langley Wm. Kirby Mouser S. Reid Harrod, Jr.

Jonesboro EI Dorado Hot Springs Jonesboro Pine Bluff Hamburg

Northwest Bar District 2003 2003 2004 200S 200S

David B. Vandergriff Ronald D. Harrison Katherine C. Gay Joe Benson Randolph C. Jackson

Fort Smith Fort Smith Fayetteville Fayetteville Fort Smith

Central Bar District 2003 2004 2005 2005

Tim Boe Steven T. Shults Sherry P. Bartley Daniel R. Carter

Little Little Little Little

Rock Rock Rock Rock

Ex-Officio Thomas L. Overbey, Immediate Past President, Arkansas Bar Foundation A. Glenn Vasser, Chair, Trust Committee H. Murray Claycomb, President, Arkansas Bar Association

Arkansas Bar Foundation Committee Chairs Audit Trust Investment A. Glenn Vasser John Robert Graves David Menz Special Projects John F. Stroud, Jr. Awards Teresa Wineland

Writing Awards Timothy Watson, Sr.

Building Russ Meeks Selection of Fellows Brian Ratcliff

Foundation Staff Ann Dixon Pyle, Executive Director Joyce Bobbitt, Administrative Assistant

.---

J -

safcguards. 21

In any even[, UM Manager and

authorization, and rhe Rules must be consulted

Medical Director must take reasonable steps to

for the core terms. 23

profect their discussions concerning PH I from

valid, however, if (a) the expiration (Jate has

c. Letters of guardianship.

others who do nor need to know the informa-

passed or rhe expiration evenr has occurred; (b)

d. Both band c.

tion to do their job.

the authorization form has nor been completely

durable power of attorney.

Overview of issues.

When a patient's

authorization is required to use or disclose PHI,

filled Out or is missing a required clement; (c)

trained if the training did nOt emphasize that

only the patient or the patient's "personal repre-

employees may not ItU PH[ in any manner inconsistent with their job functions Of obtlli"

revoked the authorization; (d) the authori7.ation

sentarive" may authorize the use or disclosure.

is an impermissible compound or conditional

A "personal representative" stands in the shoes

PHI unrelated ro their job functions. Covered entities should emphasize that this includes PHI

aurhoril.ation, as defined by the Rules; or (e) the

of the patient. 26 To determine if a person is a

covered entity knows that a material representa-

"personal representative," HIPAA looks to state

learned abom friends or even fillnily members.

tion in rhe authorization is false.

law to determine whether a person has authori-

hear

the covered entity knows that the patient has

Rules when he sroppcd and listened

Correct Answer: a. Parents' anomey IllUSt

ty to act on behalf of an adult, emancipated

present a valid HIPAA-complianr aurhoriz,1tion

minor, or deceased person. In Arkansas, attor-

more information about Patient, and when he

that includes the authority

obtain oral disclo-

neys-in-fact operating under a power of attorney

used (and arguably indirectly disclosed) PH I ro

sures from Nurse's Aide before he c.1n interview

for health care; health care proxies; guardians of

obtain information from his mher fraternity

her. There is no evidence that attorney is direct-

the person; and administrators or executors of a

buddy and call Parient's parenrs. Credentialing

ly involved in Patient's care or payment for his

deceased person's estate arc personal representa-

Specialist may have had the besr ofimentions in

care, so an oral agreemem by Parents would not

tives for the purposes of the Privacy Rules. A

doing this, and probably believes that no harm

be sufficient. Alternatively, he could subpoena

covered emity may elecr nor to treat a person as

could come from his acrions. His actions never-

Nurse for a deposition in the lawsuit. However,

a personal representative if to do so could

theless violate the Privacy Rule, and if Parents

it is always easier to obtain an alll'horization

endanger the patient; or if the covered entity

should learn that the person using their foorball

from the persall you represem rather than com-

believes thar rhe parient has been or may be sub-

tickets obrained and used information about

plying with the subpoena process, and the min-

jected ro domestic violence, abuse, or neglect by

their son improperly disclosed to him wirhin

imum necessary rule does nOt apply to authori-

that person.

Insurance Company, Insurance Company may

zations.

Requirements for subpoenas arc dis-

Parems' AttOrney, Hospital and Nursing Home

have to answer to a significant Privacy Rule vio-

cussed below.

Nurse's Aide drew from her Privacy Rule training24 and correctly referred

zation signed by Patient's personal representa-

the person claiming

tlves. In addition. they must ensure, by docu-

lation.

To disclose Patient's PHI to

must ensure that Anorney sem a valid authori-

AUTHORIZATIONS 7. Which of the following d.isclosurcs would be improper without a HIPAA compliant

Nursing Home's Privacy Officer,2S who call

mentaryevidence, thar Parents arc Patient's per-

evaluate the situation and the authorization the

sonal represent:uives.

aulhorization from Patient or his Personal

person claims to have on file.

be Parents' attorney to

Correct Answer: d. Assuming the authori-

Without ready access to an authoriz.uion by

Representative? a. Oral disclosures by

zation signed by both parems is otherwise valid,

urse's Aide to Parents'

the adverse party in the lawsuit, Driver's attor-

the Hospiral or Nursing Home would still vio-

anorney, if Parenrs are given the opportunity

ney subpoenaed Patient's medical records, and

late the Privacy Rules if either disclosed Patient's

this quesrion assumes he also has provided saris-

PHI in reliance on the affidavir declaring

object and do nor.

h. Disclosure by Hospiral or Nursing Home of P:Hienr's medical records to Driver's anorney

factory assurances that Parents know about the

Parents as Patient's next-of-kin. The attorneys

subpoena and do not object.

for Nursing Home and Hospital should contact

As discussed

who subpoenaed the records, if Driver pro-

below, under rhese circumstances no authoriza-

Parems' Attorney, and ask for a copy of the

vides satisfactory assurances that Parents

rion is required.

Letters of Guardianship or a durable power of

The Survey Agency's surveyor would violate

know about the subpoena and do not object to

An authorizarion is not

Credcntialing Specialist was improperly

Credcnrialing Specialist violated [he Privacy

health care-related decisions, as long as it is a

release of the records.

c. A disclosure by a surveyor to the person claiming to be Parenrs' anorney.

attorney granting Parents the authority to aCt on

other laws if she were to share her survey notes

Patient's behalf in requesting the records. Under

with the person alleging to be Parents' Attorney. However, the disclosure would not violate the

Arkansas law, to remain valid after the principal becomes incapacitated, a power of anorney

Privacy Rules because the Survey Agency, in its

must state specifically that the grant of powers

a HIPAA-compliant authorization.

role as a health oversight agency, is nOt a "cov-

Overview of issues. A covered entity may

ered entity" and, therefore, is llOt govemed by

will not be affected by subsequent disability or incapacity of the principaJ.27 After receiving

the Privacy Rules.

such evidence, Hospital and Nursing Home

d. None of the above disclosures would require

nor usc or disclose PHI without a HIPAA-com-

PERSONAL REPRESENTATIVES

pliant ("valid") authorization, unless an excep-

may disclose the PH I to Parents' attorney, and

There arc many exceptions, hur

8. Which of the following is sufficient evi-

may charge a reasonable, cost~based fee, includ-

the more common ones include the following:

dence that Parents are the Personal Rep-

ing postage, for copying the records. 28

tion

applies. 22

the use Ot disclosure is for TPO, required by law,

resentatives of Patient, as defined by Arkansas

for public health acrivities, for health oversight

law.

activities, for law enforcemenr purposes, and for

:l.

VERJFICATION OF IDE TITY OF PERSON REQUESTING PHI

The affidavit attesting that Parents are

9. Which of the following statements are

judicial and administrative proceedings. Some

Patient's next of kin is sufficient, as long as

of the exceptions have additional requirements,

the covered entity verifies each Parent's iden-

true? a. Nursing I-lome may rely on an oral represen-

however, and rhe Rule should be consulted.

rity.

The Privacy Rules define rhe coment of the

tation that the person claiming to be

b. A power of attorney giving Parenrs power to

Parents'Attorney is telling the truth, because

act on Patient's behalf in "all matters" or in

attorneys are professionals and Nursing

Vol. 38 No. 4/Fall 2003

n,e Arkansas lawyer

I I

card, sjJl; as a driver's license. If Clerk would have vented the identity of the person ro whom

marion only under one of the following circumstances: (I) pursuam [0 a coun or administra-

..._r-'b::;._N'"::urs,..,i"nc.g~H:.:;o":m"e:o..::s:::h:::o:::u;:ld:..:.n:;;o"l~al=lo:.:w':_'a:..~perno,::":::n,-~s",h,,e.:h~a::,n::::r'd over a copy of Patient's records, she would not have made the mistake of giving claiming [0 be a surveyor into the facility

subpoena and HIPAA-required "satisfactory

Home may reasonably rely on their rcprcscnrations.

without presentation of some written idenrificacion of the person's authority. c. Insurance Company's Customer Service Manager cannot rely on an oral represenration from MOlher that Sister is who she says she is. d. Both a and c.

Overview of issues. Before disclosing PH I to a person not known to the covered entity, the Privacy Rules require the covered entity to veri-

the identity of the recipienr. 29

the covered entity is required

In addition, obtain oral or

written representations when representative capacity is a condicion of disclosure. Such representations may be subpoenas, warrants, orders, or other legal process; identification badges or letterhead idenrifying public officials; or oral or written statementS of authority by public officials. Correct Answer: b.

The Nursing Home

mUSt verify the identity of the surveyors in a manner that verifies their representation of the Survey Agency. At the very least, the Nursing Home should verify by examining the surveyor's photo 10 badge and may also ask for a business card. The Nursing Home also is obligated to veri-

fy the identity of persons claiming to he Parents' Attorney when that person comes to the Home, and should not rely on an oral representation alone.

While there is no single way that this

may be done, the Nursing Home may ask the person to produce a copy of the Authorization and Letters of Guardianship, and also may ask for a business card or

examine a photo 10

them

to Ex-husband's Attorney. On (he other hand, Customer Service Manager at Insurance Company properly verifled the identity of Patient's Sister before dis~ cussing claims information by asking for her drivcr's license and calling Patient's Mother to verify Sister's relationship to Patient and verifying that Mother, whom Customer Servicc Manager knew to be Patient's personal representative, had no objections to the disclosure. Customer Service Manager knew Mother's voice, bur also properly verified her identity by asking for Patient's account number and Social Security umber. SUBPOENAS AND OTH ER LEGAL PROCESS 10. True or False: Hospital and Nursing Home must disclose Patient's records in response to the subpoena issued by Driver's attorney. a. True. because the law requires that Hospital and Nursing Home comply with a valid subpoena. b. False, because HIPAA preempts state laws regarding subpoenas. c. False, if Driver's attorney did nor provide a qualified protective order or satisfactory assurances with the subpoena. d. False, because an authorization is always needed in order to disclose patiem records for purposes other than treatment, payment or health care operations. Overview of issues. Generally, when PHI is requested in a legal proceeding, the Privacy Rules allow a covered emity to release the infor-

tive order or similar dirccrive;30 (2) receipt of a

assurances" from the requesting parry; (3) pursuant to a HI PAA-compliant authorization; or (4) under the protections of a qualified protective order (as defined by the Privacy Rules)}! Covered entities may continue to comply with subpoenas as well as other discovery

requests if such requests are accompanied by "sarisfacrory assurances" from the requesting party. These "satisfactory assurances" consist of written stflfement and accompanying dowmmration demonstrating that: (I) the requesting parry has made a good faith 3ncmpr to provide

wrinen norice to the patient whose records are being requested (or, if the patient's location is unknown, has mailed notice to the individual's last known address); (2) the written notice included sufficient information about the litigation or proceeding in which the PHI is requested to allow the patient to raise an objection to the tribunal; the time for the patient to raise objections has elapsed, and (3) either no objections were filed or all objections filed have been resolved by the tribunal, and the disclosures being sought are consistent with this resolution. 32 Alternatively, satisfactOry assurances may consist of a UJrittm statement and accompanying documentation demonstrating that the parties to the litigation or proceeding have agreed to a qualified prOtective order and the qualified protective order has been presented to the court or administrative tribunal with jurisdiction over the dispute}3 Correct Answer: c. Without an authorization, Driver's attorney must either provide satis-

1"'"------------------------------------...., WOMACK, LANDIS, PHELPS, McNEILL & McDANIEL

Patient's medical records. Additionally, because HIPAA requires that covered entities

A Professional Associalion

disclose only the minimum amount of PH I

AITORNEYS AT LAW

necessary to fulfill the purpose of the disclosure, Hospital and Nursing Facility should

THE FIRM ANNOUNCES THAT

have supplied Driver's attorney with only

J. NICHOLAS LIVERS

those records relating to the car accident.

and

Driver's attorney would need to provide a HIPAA-compliant authorization signed by

RANEY ENGLISH COLEMAN

Patient's personal representative in order to

HAVE COMMENCED PRACflCE AS MEMBERS OF THE FIRM Tom D. Womack Paul D. McNeill Jeffrey W. Puryear J. Rogers McNeil

C. David Landis Lucinda McDaniel Mark A. Mayfield Pamela A. Haun

obtain the entire record. There are no limits on the information that can be authorized for John V. Phelps Richard Lusby D. Chris Gardner Dustin H. Jones

Cenlury Center â&#x20AC;˘ Jonesboro,Askansas â&#x20AC;˘ (870) 932-0900

22 The Arkansas Lawyer

factory assurances or a qualified protective order with his subpoena in ordec [0 obrain

www.arltbar.com

disclosure, as long as the authorization is "specific enough to ensure that the individual has a clear understanding that the entire record will be disclosed." The covered entity may disclose any records requested under a proper authorization. 34

SUBSEQUENT DISCLOSURES BY ATTORNEYS 11. Did Driver's anomey violate the Privacy Rules by turning the medical records over to Passenger's anomey? 3. Yes. This was nor a disclosure for treatment, paymem or health Clfe operations purposes, so Driver's anorney was required to obtain an authorization before disclosing the records. b. Yes. If Passenger's anomer wanted the records, rhe attorney was required to subpoena them JUSt like Driver's attorney did. c. Yes. Driver's attorney must return or destroy

the records after he has finished with them. d. No. Driver's anomer has no dmy under the

Rules to maintain the confidentialiry 0 Patient's

Customer Service Manager also correctly told

medical records.

Sister rhar rhe requcst could take up to 30 days.

PATIENT RIGHTS ]2. Which of the following statements are

vidual probably is not entitled to "every piece of

true under the Privacy Rules and other applicable law? a. Mother's request for access to Patient's medical records mUSt be honored by Nursing Home within 24 hours of her request. b. Sisrer's request must be honored by Insurance Company, but health plans have thirty days to retrieve on-site records.

regulate those who initially create and disclose health information, bur it has no authority to regulate

mOSt

other persons or entities who

Rules as those records used in whole or in pan make decisions about the individuaL44

Under the definition, a designated records set

c. Sister's request for access should be rejected, unless Mother provides an authorization. d. Both a and c.

ment, payment, c1:.ims :.djudic:.tion and case or medical management files maintained by a

Overview of issues.

HIPAA provides

patients a bundle of rights regarding their PHI, including the right to request restrictions on uses and disclosures,35 the right to confidential communications,36 the right to access PHI,3? the right to amend PHI,38 and the right to receive an accounting of PHI disclosures. 39

health plan. However, a covered entity would not have to provide an individual access under the Privacy Rules

PHI in its quality assurance

files, because those files are used to ensure the quality of care provided by the covered entity, not to make decisions about an individual. HEALTH OVERSIGHT

Some of these rights are not absolute, and the

served by requiring covered entities to obtain certain assurances from entities requestjng PHI

covered entity may deny the right, under certain circumstances, if reasonable to do so. A covered

a. Only pursuant to a valid authorization

from them. Thus, the Privacy Rules indirectly

entity should, and in some cases must, document both requests and responses to patients

signed by a complainant; b. Because disclosures to the Survey Agency are

traCtS with these third party "business associates" binding them to numerous contractual restrictions that muSt be imposed under the regulations. A5 explained below, a business associate is a

who are exercising their rights. A nursing home

deadline is not preempted by the Privacy Rule,

d. Both band c. Overview of issues.

formance of a function or activiry involving the

plans in Arkansas, so health plans may take the

use or disclosure of PHI. A5 is clear from the

full 30 days to produce records located on site and 60 days to produce records off site, with

by HIPAA and these services involve the use or disclosure of PH I. Those attorneys who fall under the definition muSt enter into business associate contracrs with their covered clients. Attorney business associates would be prohibited by the business associate agreement from subsequently disclosing medical records. However, those attorneys who are not representing a covered entity under HIPAA are not business associates, and therefore, are under no obli-

required by law;

c. Because the Survey Agency is a health oversight agency with responsibility to monitor Nursing Home compliance with law;

person other than a member of the covered emiry's workforce who performs or assists in the per-

definition, anorneys may be business associates

13. Survey Agency may enter Nursing Home premises and review PHI:

must respond to a request for access to medical records within 24 hours of the request, except for weekends and holidays.40 This very shorr because it provides quicker access by a person or personal representative to requested records. 41 There is no similar shorter deadline for health

if they are providing services to an entiry covered

â&#x20AC;˘

vidual's access to his own PH I that is maintained in a "designated records set," defined by the

receive that information from a covered entiry. It determined that privacy protection was best

govern certain third panies through a requiremen! that the covered entities enter into con-

;

paper" about the individual maintained by a covered emity. The Privacy Rules limit an indi~

specifically includes medical and billing records maintained by a health care provider and enroll-

Privacy Rules ro keep the records confidential. Overview of issues. H HS has aurhoriry

Even with a val id reQuest for access, an indi~

some opporruniry for a single 30-day extension. 42 Correct Answer: d. When Mother asks for a copy of Patienr's medical record, she is entitled to have it because she is Patient's guardian, and therefore, personal represenrative. She has all the above listed rights as would Patient if he were medically competent, and a nursing home patient is enrirled to access to his or her medical records within 24 hours, excluding weekends

A "health oversight

agency" is an agency or a person acting under authority of a federal, state, local government or territory, or Indian uibe, that is authorized by law to oversee the health care system or governmenr programs in which health information is necessary to determine eligibility or compliance, or to enforce civil rights laws for which health information is rdevanr. 45 A covered entity may disclose PHI to a health oversight agency for all activities authorized by law, including audits; civil, administrative. or ctiminal investigations, proceedings, or actions; inspections; licensure or disciplinary actions; or other appropriate oversight actions. 46 When the Survey Agency conducts an investigation of Nursing Home's report of the allega~

gation nOt to disclose medical records they

and holidays. On the other hand, Sisrer was not entitled to

obtain in litigation unless they are prohibited

access aU of Patient's records without an author-

Nursing Home to disclose all Patient's records

from doing so by a COUrt order.

ization. She is nOt Patient's personal representa-

and investigation reportS involving Patient's

Co.-reet Answer: d. Driver's anorney is not regulated by HII'M because the attorney is not a covered entity. Additionally, because Driver's

tive and Insurance Company could disclose PHI

nurse to the surveyors, because the Survey

her only to the extent minimally necessary for

Agency is conducting a health oversight function. Generally, the minimum necessary ruJe

attorney is nor representing a covered entity, the

Sisrer's investigation of the Hospital bill. Customer Service Manager should have told

anorney is nOt bound by the testrictions of a

Sister to provide the access request form to

Business Associate Agreement.

Mother to fill out. A covered emity may require that access requests for PHI be in writing. 43

Therefore,

Driver's attorney was not required by the Privacy

tion of neglect, tbe Privacy Rule permits the

does not apply to limit the amount of disclosure because disclosure to the Survey Agency is required by other law. Also because it is required by other law, HIPAA does nOt prohib-

Vol. 38 No. 4/Fall 2003

TI,e Arkansas lawyer

it the Survey Agency from using other patienrs' PHI while it is conducring irs investigation into the neglect allegation. Correct Answer: d. No authorization is

out treatment, payment, and health care opera-

required because the disclosures are hoth

tions; to the patient or personal representative;

b. Will nor violate the Privacy Rules because disclosures relaring to employment maners

Privacy Rules, or within the six years preceding the request, whichever is later. 47 Exceptions to the accounting rule include disclosures to carry

required by law and ro a health oversight agency

in response to an authorization; for Ihe covered

acting within the scope of irs authority.

entity's directory or to a person involved in the

RlGHT TO AN ACCOUNTING 14. Which of the following ten disclosures would the covered entity have to include in an accounting for disclosure under the Privacy Rules? I. A health care provider's medical evaluation

patient's care; for national security; or to correc-

II.

employment records conraining medical

If an accounting is required, it must include the date of the disclosure; the name, and if

informarion arc expressly excluded from the definition of PHI. d. Will not violate the Privacy Rules because employment records containing medical

of Patient disclosed to the COllr( in suppOrt of Parents' petition for guardianship to establish Paticm's incapacity.

of Ihe type of PH I disclosed; and a brief descrip~ tion of the PH I disclosed. 48

authorization requirements.

Generally, the covered emity must provide

Overview of issues. Employee healrh infor-

Hospital spokesperson's disclosure

the patiell( with the accounting within 60 days

newspaper Reporter about patient's gener-

of the patiem's request and may not charge the

mation maintained by an employer docs not fall within the definition of "PH I. "50 Even employ-

ers who are also covered entities are not gov-

accounting within a 12-month period. There-

erned by the Privacy Rules in their uses and dis-

Disclosure

Sister about claims issues by

Insurance Company's Customer Service Manager.

VI.

are "health care opef3tions.路'

c. \Vill nOt violate the Privacy Rules because

known, the address of the person or emity to

Agency.

Home obtains Nurse's authori7.3tion.

whom the PHI is disclosed; a brief description

al condition. III. Nursing Home's disclosure ro Survey IV.

tional institutions.

Nurse's employee records to Ex-husband's attorney: a. Will violate the Ptivacy Rules unless Nursing

patient for the COSt of preparing the

information are expressly excluded from

after, the covered emity may impose a reason-

closures made in the role of employer, although

able, cost-based fee

for each subsequent accounting in the same 12路monrh period. 49

other laws may limit disclosures. On the other

Because covered entities are required to pro-

closures made in their roles as a covered enri-

hand, the Rules do apply to their uses and dis-

Disclosures pursuant ro the subpoena

vide accountings upon patient request, they

ty-for example, if a hospital provided medical

issued by Driver's attorney.

must document the disclosures covered by the

care

Nursing Home Clerk's improper disclo-

accounting rule. Correct Answer: a. Disclosures in legal pro-

sure to Ex-husband.

a member of its workforce.

Correct Answer:

The Nursing Home will

not violate HIPAA if it discloses Nurse's

Parents' attorney, if the

ceedings (I, V) or to health oversight agencies

employee medical records

attorney obtains a valid authorization

(III) must be documented and accounted for.

anorney because such records are not PHI, and

VlI. Disclosure

from one or both parents.

Ex-husband's

Disclosurcs VI and IX arc improper because

the Privacy Rules, therefore, do not govern uses

Consulcant.

they should not have been made without an

or disclosures of such records.

IX. A disclosure by Insurance Company pur~

authorization, and a covered entity must

VIII. Nursing Home's disclosure

suallt ro Sister's written request for access 10

Patient's PH I.

The rest of the listed disclosures faU within

X. Nursing Home's disclosure

to its own

attorney.

a. I, III, V, VI, IX b. All would require an accounting. c. I, II, III, IV, VI, VIII, IX. d.

account for such disclosures.

one would require an accounting. Overview of issues. With some exceptions,

COMPLAINTS 16. To initiate a complaint against Nursing Home alleging a violation of the Privacy

the following exceptions to accounting require-

Rules based on disclosure of Patient's PHI to

ments:

Ex-Husband's attorney, Mother:

II (hospital directory disclosure); IV

(disclosure to family member involved in pay* mcnt for Patient's ore); VII (disclosure made

a. Must first file the complaint with Nursing

pursuant to a valid authorization); VIII (disclo-

with the resolution, may appeal to a designee

sure made for quality assurance purposes-health care operations); X (disclosure made to obtain

Home's Privacy Officer, and, if not satisfied of the Secretary of HHS. b. Must first file the complaim with Nursing

patients have a right to receive an accouming of

legal services-health care operations).

Home's Privacy Officer, and, if nOt satisfied

PHI disclosures made by a covered entity on or

EMPLOYEE MEDICAL RECORDS 15. Disclosure of medical information in

with the resolution, may appeal to the

after April 14, 2003, the effective date of the

Arkansas Department of Human Services, Office of Long Term Care.

Handwriting Experts

c. May simultaneously complain to Nursing Home's Privacy Officer and the designee of the Secretary of H HS. d. May sue under HIPAA in federal district

Linda L. Taylor

Howard (Bear) Chandler

court. Overview of issues. In addition to dcsignal*

EXAMINATION CONSULTANTS

ing a comact person or office for receiving complaints,51 covered entities are required to

1765 John Bryant Dr. - Conway, AR 72034 (501)450-6361 Retired from the Arkansas State Crime Laboratory

have policies and procedures for individuals to make complaints. 52 Complaints and their dispositions must be documented. 53 Covered entities may not intimidate, discriminatc, or in any way retaliate against any person who

24 TI,e Arkansas Lawyer www.arkbar.com

. • ----

files a complaint.5-4 Correct Answer:

written agreement that the business associate Co

Mother may file simulta-

will safeguard the inform:uion. 58 The Privacy

will need to re-examine their record-retention rules because HIPAA documents must be

ursing Home's

Rules lay OUt the specific dements that must be

Privacy Official and with the SecKtary of HHS. The Secrc12ry has designated. the Dallas regional office of the Office of Civil Rights [0 <accept

addressed in a business associate agreement. 59

mained for six_ ~.fTom the date of creation, or the date of last use, whichever is latcr.

complaims originating in Arkansas. 55 The

The preamble to the August 2003 modifications to the Privacy Rules further scates that agrttmenu may not authorize business associates co

18. In the first year of HIPAA Priv~cy rnforcrmrnt, which of thc following individ-

ursing Home's arice of Privacy Practices must provide information on how to file a com-

use or further disclose PHI in a manner that would violate the Rules if done by the covered

uals arr most likely to facr ~nonal fines under HIPAA's penalry statute?

plaint. along with the comact information. 56 The Nursing Home should consult its policies and procedures and provide Mother with inforIllation relating to the rcsolurion of her com· plaint according to its policies. The Home should documem its investigation and any corrective action. There is no requirement under Privacy Rules to complain to the covered entiry fim ~fore complaining to HHS. Mother may wish (0 sue ursing Home and Clerk for a privacy violacion, but she may not do SO under authori-

entity, unless the use or disclosure is for the business associates' management and adminis-

a. Nursing Home Clerk, for knowingly failing to verify the identity of Ex-husband's anor-

neously a complaint with the

of HIPAA, beaus< HIPAA does nor provide

Mother with a private right of action.

PENALTIES FOR HII'AA VIOLATIO S

tration and to carry Out its legal responsibilities,

ney before mistakenly Patient's medical records.

him

b. Ex-husband's anorney, for attempting to use

HIPAA does nO[ regulate business associatcs, unless they are aJso covered emitics. If the busi-

Patient's PHI for commercial advantage. c. CredentiaJing Specialist, for knowingly

ness associal'e commits a HII)AA violation, then,

obtaining and using Patient's PHI in a manner outside his job description.

the covered entity is accoum~ble to the HHS Offia: of Civil Rights if it knew of a pattern of

one are likely

~ sanctioned personally,

activity or practia: that constituted a material breach of the business associate's obligacion, and

at least in the initial year of enforcement. Overview of issues. Persons, both individ·

failed to take reasonable steps to cu.-c the brtach

u.al and legal, who knowingly and in violation of the Administrative Simplification Act (a) use or

BUSINESS ASSOCIATES

or end the violation; or if such steps were unsuccessful, failed to tcrminale the contract or

t 7. Which of the following contractual .-cla-

arrangement, or if termination was not feasible,

cause to be used a unique htalth identifier; (b) obtain individually identifiable health informa-

tionships does

failed to report the problem to the Secretary of

tion relating to a patient; or (e) disclose individ-

HHS.61

ually identifiable health infotmation to another person, shall be (a) fined not more than

Itot

require business associate

language in the contract or in an addendum to the contract? a. Hospital's contractual relationship as a preferred provider for Insurance Company's b.

benefit plan. ursing Home's contracrual relationship with Consultant.

Correct Answer: a. A health plan's contracroal relationship with a preferred provider, in which the provider agrees to accept a certain rate for health care services, is not a business associ· ate relat'ionship because neither party t'O the comract is performing services on behalf of the

$50,000, imprisoned for up to one year, or both; (b) fined nOt more than $100,000, impris· oned up 1'0 five years, or both if the offense is commirred under false pretenses; and (c) fined nOt more than $250,000, imprisoned not more than JO years, or both if the offense is commit-

c. Hospital's contractual relationship with its lawyer.

other parry. Sometimes,:a health plan may contract with a provider to perform certain fUnc·

d. Borh band c. Overview of issues. A "business associatc" is a person who performs a function or activity that involves using or disclosing individually identifiable htalth information for or on behaJf of a covered entiry.S7 If a pcrson is treated by the covered entity as a member of its work force, then that person is not a business associate. Typical business associate functions include claims processing or administration, data anaJy. sis, utilization review, quality assurance, billing, benefit management, practice management, repricing; or legal, actuarial, accounting. consulting, daca aggregation, management, admininrative, accreditation, or financial services. A covered entity may be a business associate of another covered entity, except that halth care providers, when providing treatment, are not considered business associates. A covered entity may disclose PHI to business associates, who may create and receive PHI on the covered entity's behalf, as long as the covered entity receives satisfaccory assurances in a

rions on its ~half. For example, a health plan

ted with intent to sell, transfer, or use individually identifiable health information for commer-

might contract with a professional associacion of providers to ~dminister claims of providers in

cial advantage, personal gain, or malicious harm. 62

the group, or to perform utilization management services on the health plan's behalf. In such circumstances, the health plan would need to enter into a business associate agreement with the professional association. Nursing Home's Consultant and Hospital's attorney are each business associatcs of those entities. Each of them may use and further disclose PHI only as permitted in the business ass0ciate agreement, and have obligations to protect health information similar to the covered enti-

Best Answrr: d. While no one can predict

for sure how HHS will react, it is mOSt likely that no one would face fines or criminal penalties, particularly in the first year of enforcement. In the preamble to the first proposed rule issued on enforcemem, HHS stated that "[rjhe Department intends to seek and promote voluntary compliance with the rules promulgated to carry out the HIPAA provisions."63 Emphasizing the technical assiscance continuing to be produced by the Office of Civil Rights, the

ry's. In a sense, the Privacy Rules are derivative.

preamble states that such efforts "will continue

For example, if the business associate uses a sub-

after the April 14, 2003, compliance date, as

contractor to whom it further discloses PHI, the

OCR ltarns from its compliance activities and

business associate must observe the minimum

from those who are implementing the Privacy Rule where additional guidance and assistance are nceded. "64

necessary and accounting of disclosur~ rul~ when disclosing PHI to the subcontractor. In addition, the business associate is required to make sure the subcontractor agrees to the same restrictions and conditions Ihat apply to the business associate.

Clerk would most likely not be sanctioned for her mistaken disclosure of Patient's records

Funher, business associates

vol. 38 No. 4/Fall 2003 -

providing

or co provide data aggregation services to the covered entiry.60

HIPAA

continued on page 34 TI,e Arkansas Lmryer

HOW THE CIVIL JUSTICE REFORM ACT CHANGES ARKANSAS TORT LAW by Robert B Leflar The Civil Justice Reform Act of 2003,' aimed at restraining legislatively perceived excesses in tort litigation, did not transform Arkansas tort law beyond recognition. The fundamentals of most tort cases remain the same. However, the law does make significam changes regatding (I) allocation of responsibility among parties and nonparties in personal injury and property damage cases, (2) punitive damages, and (3) medical injury actions. Attorneys handling cases involving any of these areas must familiarize themselves with the new law and its implications. Additionally, venue requirements are altered for many types of claims. J. Joint and Several Liability Almost Erased Probably the single most important fearure of rhe new statute is that in personal injury and property damage cases, traditional joint and several tortfeasof liability is replaced by a new system in which defendants typically are liable for only their own share of responsibility for a plaintiff's harm as determined by the trier of fact. 2 Moreover, as explained more fuHy in a forthcoming article,3 in a historic shift from previous law, the trier of fact is now required to "consider the fault of all persons or entities who contributed to the alleged injury ... regardless of whether the person or entity was, or could have been. named as a party to the suit. "4 Under this new provision, the fact finder must divide responsibility for a plaintiff's injuries not only among the plaintiff and the named defendants, but also among persons foreign to the action, if a defendant gives notice at least 120 days before trial brieAy setting our the basis for believing the nonparties to be at fault. s These 110nparties to whom fault could be assigned might include our-of-state or foreign firms mat cannO[ be sued for lack of personal jurisdiction; persons or entities protected by sovereign, charitable, or intrafamily immunities; employers whose negligence was one cause of injury to an employee suing a third parry such as a product manufacrurerj persons or entities without assets, "not worth suing"; and persons whose location and perhaps even

idemity is unknown. 6 Since under the new law defendams' fault "shall be several only and shall not be joim,"7 this "empty chair" provision creates powerful incemives for defendams to dilure their own liability by comending that nonparties are at least partially responsible for the plaimiff's injury. Joint and several liability is preserved, however, in rwo situations. The first is when a person at fauJr is "acting as an agem or servam" of a party defendam. 8 Thus a non-negligent employer could still be held vicariously liable for a plainriff's injury caused by the negligent driving of an employee on company business. The second is where a party defendant was "acting in concert" with a person injuring the plaintiff. "Acting in concert," however, is defined more strictly than at common law, as "emering into a conscious agreement to pursue a common plan or design to commit an intentional tort and actively taking part in that intentional tort."9 A defendam engaged in a merely reckless or negligent joint enterprise with a harmcausing actor can no longer be held jointly liable for that harm, and would be severally liable fOf a portion of it only if the defendant's own act itself was also a proximate cause of the harm. If one defendam's several share of liability is not reasonably collectible, the new law provides for at least a partial reallocarion of mat share to orner tOrtfeasor defendams. In such a case the courr will increase the share of a defendant found at least 50% at fault by up to 20%, and me share of a defendanr found to be 10-50% at fault by up ro 10%.10 A defendant receives no increase in irs fault share allocation if it is 10% or less at fault. Nor does the law provide for any reallocation to defendants of fauJr assigned to nonparties. Nonparties' faulr shares in effect are assigned to plaintiffs. II. Punitive Damages Restricted Responding to concerns about large punitive damage verdicts in Arkansas!l and elsewhere, the General Assembly tightened me standard of proof necessary to

Rob L4far is Arkamas Bar Foundation Professor ofLaw at tht Univmity ofArkamas School ofLaw, Fayttttville, and adjunct professor at tht Univmity ofArkamas ftr Mtdical Scimces. Ht reaches torlS, products liability, and various COUTUS in th~ ar~a of h~alth law. His scholarly work. in addition to thou areas, extends to articks and" book (in Japanese) comparing lapanest and American htalth law. Ht ttstifitd in january 2003 btftrt rlst HouIt Judiciary Commiu" agaimt HB 1038, an tarly vmion ofa bill that, significantly ammdd, b"amt tht Civil justict Rtftrm Act. 26 The Arkansas La")'cr

www.arl<bar.com

support a punitive damage award, limited the amounts awardable, and created a bifurcated proceeding for considering punitive damage claims. Unlike the new law's fault allocation provisions discussed above, which apply only to personal injury and properry damage cases, the new law's punitive damage provisions appear to apply to all tOrt cases.!2 This is significant because most punitive damage awards occur in business tOrt cases rather man personal injury cases. The new law codifies existing precedent!3 holding that to recover punitive damages plaintiff must show defendant engaged in either of twO classes of conduct; "(I) the defendant knew or ought to have known, in light of the surrounrung circumstances, mat his or her conduct would naturally and probably result in injury or damage and that he or she continued the conduct with malice or in reckless disregard of the consequences from which malice may be inferred," or (2) "the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage. "14 Going beyond mere codification, the law increases the quantum of evidence required ro support this showing. It replaces "substantial evidence," the prior standard for purposes of appellate review,lS with "clear and convincing evidence."16 The Civil Justice Reform Act limi[S the amount of punitive damages in cases in which the defendant's conduct was malicious or reckless (the first class of conduct above), but not in cases in which defendam's conduct was imemional (the second class ofconduct). The punitive damage recovery limit for each plaimiff harmed by a defendant's malicious or reckless conduct is the greater of $250,000 or three rimes the amoum of compensarory damages up to $1 million, adjusted triennially for inflation. I? Trials involving punitive damage claims must be bifurcated at the request of any party. The first parr of the trial focuses solely on liability for compensarory damages. Only if compensatory damages are awarded

may the trial proceed to consideration of punitive damages, and only during this second stage can "evi_ dence of the financial condition of the defendam and other evidence relevant only to punitive damages" be admitted. 18 III. New Rules for Medical Injury Actions Among the major proponents of the Civil Justice Reform Act were the Arkansas Medical Society and the Arkansas Hospital Association, both concerned about increases in liability insurance premiums. Several provisions of the new law created ruJes specifically benefitting health care providers in medical injury actions. Among these provisions are requiremen[S that (a) plaintiff file a medicaJ expert's affidavit of reasonable cause at the outset of an action; (b) the action be filed where the allegedly negligent acts occurred, typicalJy in the defendant's home counry; and (c) plaintiff's expert witnesses be of the same specialry as the defendant(s). The new law also rules out vicarious liabiliry theories adopted in other states shifting some physician liabiliry [0 hospitals. It precludes the admissibiliry of certain surveys and inspections as part of the plaintiff's, but not the defendant's, ease. It restric[S the operation of the collateral source rule regarding plaintiff's entitlement to damages reflecting fuJi rather than discounted cos[s of medical services. FinalJy, it requires periodic rather than lump sum paymenr of fi"ure damages exceeding $100,000. Expm Medical Affidavit Requirement: The General Assembly, concerned about allegations of frivolous medical malpractice actions, beefed up existing deterrents against "false and unreasonable pleadings." The new law provides that in medical negligence cases in which expert testimony is required, reasonable cause for the action "shall only be established by the filing of an affidavit that shall be signed by an expert engaged in the same rype of medical care as is each medical care provider defendant."19 The affidavit must state with particularity the basis for the expert's vol. 38 No. 4/Fall 2003

n,e Arkansas Lawyer

opinion that the applicable standard of care was breached, causing harm. The affidavit muSt be filed within 30 days after the filing of the complaint, or the action will be dismissed. 20 l7enue Limitation: The new law provides that actions for medical injury "shall be filed in the county in which the alleged act or omission occurred."21 This will generally be in the defendants' home county. The law does not specifY where the action should be filed if a course of treatment takes place in more than one county, as in a case where a patient alleges misdiagnosis by a practitioner in one county, referral to a specialist or hospital in another county, and injury resulcing from negligent treatment there and from negligence in the operation of the managed care plan, headquartered in a third counry, with which all the individual providers are affiliated. 22 Expert Witness Limitations: Under the new law, except for cases in which the asserted negligence can be understood as a matter of common knowledge, plaintiffs are required to prove the standard of care and breach of that standard through expert witnesses "of the same specialty as the defendant. "23 This provision is pardy a response to concern about "hired gun" plaintiffs' experts testifYing in areas in which they do not practice. The provision overturns prior case law allowing a general practitioner, in the trial judge's discretion, to testify about the standard of skill of a specialist if the issue relates to a question within the general practitioner's area of expertise. 24

"the only reason for naming the facility as a defendant is that the defendant medical care provider practices in the faciliry."27 This language does nOt apply to claims against the hospital based on the hospital's own institutional negligence, for example in credentialing or infection control. Inspection Report Admissibility: The Civil Justice Reform Act includes a provision limiting admissibility of surveys and inspections by state and federal regularors and by accrediting bodies such as the Joint Commission on Accreditation of Healthcare Organizations. The new law makes such materials admissible only if "relevant to the plaintiff's injury"28 (as opposed, perhaps, to other issues in the case such as the standard of care or the propriety of punitive damages). The provision applies only to surveys and inspections offered by plaintiffs. Defendants' use of such materials is unaffected. Co/lateral Source Rule Restriction: The new law provides that damages for the cost of a plaimiff's medical care are limited to "costs actually paid" and costs "which remain unpaid and for which the plaimiff or any third party shall be legally responsible."29 This provision reverses prior case law holding that the amoum by which medical services are discounted constitutes a benefit from a collateral source, similar to an expense covered by an insurance policy, which under the collateral source rule is nOt taken into account to diminish plaintiff's damages. 3o

The provision might also be read to prevent a specialist from testifYing about the standard of care for a general practitioner defendant. Plaintiff's expert on causation issues, by contrast, does not have to be within the defendant's specialty.25 Restriction on Vicarious Liability Theories: Many jurisdktions have adopted theories permitting vicarious liability actions against a hospital for negligence committed at the hospital by non-employee physicians with staff privileges to use the hospital's facilities and personnel in treating their patients. These theories limit or reject the hospital's traditional defense that the negligent physician is an independent COntraCtor for whose acts the hospital has no responsibility. The theories are rypically based on the contention that the physician is an apparent agent of the hospital, on the hospital's tight to control key aspects of the physician's work, or on the premise that the work negligently performed (for example, in the emergency room) is an "inherent function" of the hospital. 26 Proponents of these theories argue that they reflect the realiry that medical care is team care, and that focusing liability on the organization rather than blaming the individual physician promotes a more coordinated approach to error prevention and higher quality health care overall. The Civil Justice Reform Act, in contrast, attempts to restrict vicarious liability of hospitals to situations in which the plaintiff proves the allegedly negligent medical care provider is an employee of the hospital, when

Periodic Payment of Future Damages: The new law requires the court, at the request of either party, to order that future damages exceeding $100,000 be paid in whole or in part by periodic payments rather than in a lump sum. 31 This changes the prior statute giving the court discretion in the matter. IV. Conclusion The provisions of the Civil Justice Reform Act outlined above, and a few others discussion of which is precluded by space limitations,32 together constitute a set of significant changes but nOt a revolution in Arkansas tort law. As proponents of the new law have pointed out, recem rort legislation in some other states has been considerably more tadical. The overall impact of the new law will certainly favor defendants and their liability insurers as a class. Instances of injustice likely to arise under the law are not hard to imagine,33 and one can expect challenges to some of its provisions on separation of powers and other constitutional grounds. While the courts work through these issues, attorneys handling Arkansas tort cases are well advised to give close attention to the new law's language and structure. II

28 TI,e Arkansas Lawyer www.arkbar.com

Endnotes I. 2003 Ark. Acts 649 (effective March 25, 2003). The new law is codified in Ark. Code Ann. Â§Â§ 1655-201 to -220, 16-114-206, and 16-114-208 to Tort Continued on page 38

ClE ClE ClE ClE

Arkansas Bar Association CLE Calendar HAUNTED BY

HIPAA

October 31, 2003 UALR Bowen School of Law Lirrle Rock, AR

GAP November 6-8, 2003 UALR Bowen School of Law Lirrle Rock, AR BRIDGING THE

IMMIGRATION LAW

November 14, 2003 Convention Center Forr Smirh, AR BANKRUPTCY REPRISE

November 21, 2003 Clarion Inn Fayetteville, AR CLE & DUCK HUNTING

(Fifth District) December 5, 2003 Phillips Co. Communiry College Stuttgart MID-YEAR MEETING

January 22-24, 2004 The Peabody Horel Memphis, TN ANNuAL MEETING

June 9-12, 2004 Arlington Hotel Hor Springs, AR For more information. contact Virginia Hardgrave, Arkansas Bar Association, 800~609-5668,

501-375-3957, vhardgrave@arkbar.com

OR CHECK OUT THE

CLE

PAGE

www.arkbar.com

VoL 38 No. 4/Fall 2003

n,e Arkansas lawyer

Lawyer Disciplinary Actions Final actions from July /2, 2003, through September 24, 2003, by the Commitree 01/ Professional Conduct. Summaries prepared by the Office ofProfessional Conduct. Full text documents are available on-line at http://courtJ.state,ar.m/courts/cpc.lmnl.

DONALD EUGENE PERVIS, #81213, of SarasOt'a, FL, in Supreme COlirt Case No. 03

$21,000 owed from ar least four personal injury cases he handled that senled, and other types of

1015, on September 3, 2003, petitioned the

complaints. On September 18, 2003, rhe

Ccurr co accept the surrender of his Arkansas law license, as a result of his disbarment in Florida by

Arkansas Supreme Coun accepted Pervis' surren-

Order filed September 18, 2003. In Florida,

Arkansas.

der and barred him from the practice of law in

Pervis faced disciplinary complaints arising out of

SURRENDERS,

claims that he failed to pay medical providers sums ranging from $3,000 to in excess of

SUSPENSIONS,

F. ATKINSON, JR., #76003, orParis and Fort

Smith, in Committee No. 2003-061, by Consent

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Rules 1.1, 1.2(a), 1.3, 1.4(a), 1.4(b), 3.4(c), and 8A(d), had his license to praceice suspended fot sixty (60) days from August 4, 2003, subject to reinstatement thereafter. Atkinson represented Ms. £frud in a Rule 37 post-conviction matter,

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DONNY G. GILLASPIE, #61010, of EI Dorado, in Committee No. 2003-031, by Committee ballot vote in May 2003, on a referral by the Arkansas Supreme Court, for violation of Model Rules 1.3 and SACd), had his license ro practice law suspended for three (3) months and was assessed $50 costs. For failing to file a response ro the formal complaint, the Panel suspended his license for six (6) monrhs and fined him $2,500. Gillaspie failed to timely file the notice of appea.! for his crimina.! cliem, Mr. Gulley. His belated appea.! was granted when

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the Panel's balloc vote decision. The Panel found Gillapsie failed ro meet his burden on reconsideration of proving compelling and cogent evidence of unavoidable circumstances sufficient to excuse or justify his failure ro timely respond, and denied reconsideration by Order filed September 2, 2003. Gillaspie appealed to the Supreme Court, No. 03-994, which, on September 8, stayed his suspension pending outcome of the

Lawyer Disciplinary Actions appeal, conditioned on his posting a $5,000 bond and nOI having any additional formal com· plaints filed against him during the Stay. DAVID LEWIS CLARK, #95093, of Amity, AR, in Commince No. 2003-022, by Order filed August 19, 2003. on a referral by the Arkansas Supreme Court, for violations of Modd Rules 1.3 and 8.4(d), was reprimanded, fined 5500 and assessed S50 costs. For failure to respond to the Committee Complaint. his license to praaice was suspended for six (6) months from August 19,2003, subject co reinSC3t'cmcm thereafter. and he was fined an additional $500. Clark represented Whisenant on appeal in CACR 20011417. from a seventy·rwo month sentence. Aher receiving six extensions of time to file her brief, his mmion for a seventh was filed fifteen minutes late with (he Clerk. The Attorney General's motion to dismiss the appeal was gramed. Whisenam's pro se mOl ion for reinstatement was granted, Clark was relieved as her counsel and referred [Q the Comminee. He Failed to file a response ra the Comminee's Complaint. DAVlD LEWIS CLARK, #95093, of Amity, AR, in Commirree No. 2003~023, by Order filed August 19. 2003, on a referral by the Arkansas Supreme Court. for violations of Model Rules 1.3 and BA(d). was reprimanded, fined $500 and assessed $50 COStS. For Failure to respond [Q the Comminee Complaint. his license to practice was suspended for six (6) months from August 19. 2003, subject to reinstatement thereafter, and he was fined an additional $500. Clark repreSCnted Whisenant on appeal in CACR 20011418, from a seventy~rwo month sentence. After receiving six extensions of time to file her brief, his motion for a seventh was filed fifteen minutes late with the Clerk. The Anorney General's motion to dismiss the appeal was granted. \'(Ihisenant's pro SC motion for reinS£atement was granted. Clark was relieved as her counsel and referred to the Committee. He failed to file a response ra the Committee's Complaint. CHARLES D. MATTHEWS, #64026, of Bentonville, in Committee o. 2002-170, by Consent Order filed August 26, 2003, on a com· plaint by Harryetta Bailey, for violations of Model Rules 1.4(b), and 5.5(a), had his license to practice suspended for three (3) years from August 26. 2003. subject [Q reinstatement thereafter, was fined $2.500, and assessed S250 costS. (This suspension runs concurrent with his current five year suspension in Neal v. Matthews. 342 A<k. 566 (2000), Committee No. 94-132.) Matthews was suspended from law practice for five years on November 2B, 2000. He hosted a

retirement planning seminar in August 2002 and met Ms. Bailey. He offered free consultations to attendees. and Ms. Bailey met with him for that purpose after the seminar. She mentioned changes in various documentS. but did not intend for him to make these changes. After second meeting, Matthews produced drafts of estate planning documents for her review. Later she received a packet of estate planning documentS from Matthews with his bill for $500 for consultation and document preparation. According to Bailey. at no time did Matthews inform her he was an anorney whose license was currendy suspended. Matthews provided legal services at a time when his license ra practice was suspended.

REGINALD SHELTON McCULLOUGH, #85102. of Little Rock, in Committee No. 2002 130, by Order filed July 15, 2003, on a complaint by Floyd Williams, for violations of Model Rules 1.2(a), 1.3, 1.4(a) and 1.16(d), was reprimanded and assessed $50 costs. In mid-2001 Mr. McCullough was hired and paid co assess postconviction relief thac might be available for Williams, bue failed (Q effectively do so for four· teen months thereafter. The client was nor kept properly informed of the status of the representation. The file, transcript and unearned fee were nOt returned to the client when the attorney's services were terminated in August 2002. The attorney provided the transcript and partial refund check to the Office of Professional Conduct when he filed his response to the Formal Complaint, and they were tendered ra the client's representative.

DAVlS HENRY LOFfIN, #79196, of West Memphis. in Committee No. 2003-034, by Consent Order filed August 26, 2003. on a complaint by Georgia Danielle Holmes. for violations of Model Rules 1.1, 1.3, 1.8(e) and 8.4(d), was reprimanded, fined $700. and assessed S50 costS. Holmes hired Loftin in September 2000 to represent her in a bankruptcy. which was filed. She later lost her job and missed her plan paymentS for 4-5 months. The court gave her another chance. but required her to maintain insurance on the vehicle. She delivered proof of insurance ra Loftin's office but he Failed to timely provide it to the lienholder. and her car \vas repossessed. He repeatedly assured her he would take care of the matter before it happened. Thereafter, Loftin provided prohibited financial assistance to the client by renting a vehicle for Holmes to have a way to get to work. The court later ordered the vehicle returned to Holmes because the repossession was found to be due to Loftin's negligence. Loftin was ordered to pay $315 in repossession costs and $500 in attorney's fees. RICK SELLARS, #77122, of Little Rock, in Committee No. 2003-038. by Consent Order filed August 26, 2003, on a complaint by James K. Katke. for violations of Model Rules 1.3 and BA(d), was reprimanded. fined $500, and assessed S50 costs. Sellars was hired in 1997 to represent Katke in a breach of contract action against a former employer. A demand letter was sent and suit was filed in March 1998. After some discovery. Katke claimed Sellars srapped contacting him. The suit was dismissed for lack of prosecution in April 2001. but Kalke was nor raid of this by Sellars. Sellars responded that the first he knew of the dismissal was when he got the formal disciplinary complaint. He also Stated that

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Lawyer appeal. an untimely order. His motion for rule on the clerk was granted. on his acceptance of

the defendant took Chapter 7 bankruptcy after

for 550,000 in January 1995, but did nor dis·

the suit was dismissed, precluding any rcfiling_

tribute the bulk of the funds until laler in 1995 and in early 1998. He failed (Q pay a bill of

ROY C. "Bill" LEWELLEN, #82093, of Marianna, in Comminee '0. 2000·084. by

$4,000 from a surgeon for services to thc client in 1991-92 arising out of her injuries, and failed to

RODERICK

Order filed Sepremlxr 8. 2003. on a complaint

account to the cliem for the last 52,446.81 of the

Clarksville. in Comminee

by United States District Judge Richard A.

settlement funds until 2002. He was unable to

Consent Order filed july 18. 2003. on a com-

Enslen of the Western District of Michigan, for

provide requested trUSt account records less than

plaint by Joann Collins. for violations of Model

violations of Model Rules 3.4(c), 5.5(.1), and

five years old and a contemporaneously produced senlement sheer. The physician was paid in full

fined $500, and assessed $50 costs. Weaver pre-

in April 2003. Panerson successfully defended Farlee in 1996. to Ihe Supreme Coun, against an

sented Collins in a divorce. He was to prepare a Qualified Domestic Relations Order (QDRO)

anorney's lien claim of one-third of her senle·

after the final hearing April 16. 2001. In june

ment from her first anorney in the case.

200 I. he also received a quitclaim deed. from her

8.4(d), was reprimanded, fined $1,000, and

assessed $50 costs. In 1999 Lewellen represented a client in a criminal case in federal COUrt in Michigan, where Lewellen was not adminoo. Lewellen was djrected by judges on several occa-

responsibiliry for the mistake.

WEAVER,

#74153,

o. 2002-143. by

Rules 1.3, 1.4(.), .nd 1.I5(b), was ",mioned,

former husband as pan of the property senle·

sions to file admission papers hut apparently failed (0 do so. He fuiled to correct the record

ment agreement. He conditioned delivery of the

CAlITIONS,

deed to Ms. Collins upon her payment of the balSeptember 2001 but did not get the deed. As of

Arkansas. Lcwdlen told the count with Lewdlen

RICKEY H. HICKS, #89235, of Li,t1e Rock, in Committee o. 2002-139, by O,de, filed July

advising his client not

try to go to Michigan

18, 2003. on a complaint by Myrtle "Merle"

former husband's employer. After the formal

for COUrt. The coun had to r~1 the hearing and later issued a show cause order for Lewellen for

Smith. for violations of Model Rules IA{a) and I A{b). was cautioned. Smith hired Hicks in

complaint was served on Mr. Weaver, he sent the

what the court took to be an inaccurate State·

january 2000 to represent her in an employment

got a second revised QDRO submined to the

ment to the coun aboUl Lewellen's admission sta·

discrimination suit against the Arkansas Depanl11ent of Human Services. Difficulties in

plan administrator in February 2003.

violated Model Rules 1.3 and 3.3 and ccnsured him. This finding was affirmed on appeal by the

communication ensued. Mr. Hicks failed to file discovery responses and F.1iled to advise his c1iem

LORI A. MOSBY, #94016, of Little Rock, '" Committee No. 2003-008, by O,dcc filed July

Sixth Circuit Coun of Appeals. Immediately

on her options of trial before lhe Federal

30, 2003. on a complaint by Pamela Griffin, for

before his public hearing in Arkansas. Lewellen

Magistrate Judge and mediation, (0 Iry to move her maner toward resolution. Unable to obtain

violations ofModci Rules 1.3, 1.4(.), 1.5(c), .nd 1.15{b). was cautioned and assessed 550 COSts.

information about her case from Hicks. she ter· minated his services in July 2001 and hired

Mosby represemed Griffin in a personal injury daim in 2000-2001 which sell led for $11,000

another attorney to pursue her litigation.

and was paid on July 20, 2001. The diem's set·

L. ALLISON, #87003, of Morrilton. in Comminet" o. 2003-065. by Consent Order filed July 24. 2003. on a referral by the Arkansas Supreme Coun, for violations of Model Rules 1.3 and 8A(d). was cautioned, fined SIOO. and assessed $50 COSts. In a criminal appeal, Allison obtained an order extending rime to file the record 98 days after filing the notice of

the client's bill with a chiropractor. The diem was contacted by the chiropractor about her unpaid bill. The Office of Professional Conduct wrote

when asked about his Slatus by a judge. His c1iem

ance of $975 in his anorney fees. She paid him in

and he missed a coun appearance for sentencing in February 2000, due to a snowstorm in [0

lUS. After a hearing the coun found Lewellen had

offered a plea ro the Pand, which was accepted. for the sancrions stated herein.

RALPH M. PATIERSON, JR., #68048, of North Linle Rock. in Comminee No. 2003·050. by Consent Order filed September 19, 2003, on a complaint by Valerie johnson (now Farlee). for violations of Model Rules 1.3. 1.4(a). and 1.15{a). was reprimanded. fined $500, assessed $50 COSts. and ordered ro pay restitution of $2,500 to complainant. Patterson [Oak over rep· resentation of Farlee from another anorney in a personal injury case in 1993. He senled the case

July 2002 no QDRO h.d been accep,ed by hcc

deed. to Collins in

ovember 2002. and finally

t1ement check was shon $1.310.00 needed to pay

MICHAEL

Business Valuations

Mosby bringing this maner to her anention in September 200 1 and December 2002. She finally discovered the missing 51.310 in her trust account and paid the chiropractor on December 30, 2002. eighteen months after the case sertled. The anorney fuiled 10 timely and accurately review her trust accounl and reconcile c1iem accounts there.

Comprehensive Technical Expertise in Business Valuations. Forensic Accounting, and Consultations for Trial Testimony

CHARLES D. "SKIP" DAVIDSON, #73026, of

Certified Public Accountant (CPA), Master Certified Business Appraiser (MCBA), Accredited Senior Appraiser (AS A), Accredited in Business Valuations (ABV), Certified Fraud Examiner (CFE)

Order flied August 5. 2003, on a complail1t by

Expert Witness Testimony Court-Appointed

Little Rock, in Committee

o. 2003~043, by

Dane Arnell Blum. for violations of Model Rules 1.8(c) .nd 8.4(.), was ",utioned, fined SI ,000,

and assessed S50 costs. The anorney was hired in

Richard l. Schwartz

1999

represem

Mr.

Blunt

III

Schwartz & Associates, CPAs 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445

accident at Six Flags Over Texas. Blunt needed

(501) 221-9900, (501) 221-9292 fax

transportation

email;schwartz@busvalu.com

buy an Acura for

paternity/wrongful death acrion arising out of an 50

attorney arranged for him llot

more than $30,000 and

financed il through a bank in which anorney was

32 TI,e Arkansas La\\)'Cr

www.ar1<bar.com

Lawyer Disciplinary Actions a major owner, with the attorney making the

$535.80 monthly payments, totaling $13,924.40. When Blum's legal claim fell

the other side, and she filed discovery responses as quickly as she could after she obtained respons-

lations of Model Rules 1.3, 3.4(c), and 8.4(d), was cautioned and assessed $50 costs. While rep-

es from her client.

resenting a criminal client in federal court, and after being given proper notice, Harris failed to appear for his sentencing on March 2003, with no explanation. The sentencing had to be reset, causing delay for the court. II

through, he heard nothing more from Davidson,

Blum wrecked the car in May 2002, and the insurance company paid off the bank. Davidson responded that Blum, who had no credic, was to work on his farm and pay for the car through payroll deductions, but that plan did not work our, so Davidson paid the bank to protect his credibility there. He admitted involving himself in the dient's purchase of the car was a mistake.

TAMMYL. HARRIS, #91 195, of Little Rock, in Commitree No. 2003-052, by Order filed September 24, 2003, on a complaint by United States District Judge George Howard, Jr., for vio-

BRUCE B. TIDWELL, #96115, of Little Rock, in Committee No. 2003-067, by Order filed August 26, 2003, on a complaint by Bruce L. Safman, M.D., for violations of Model Rules

1.4(a) and 1.7(b), was cautioned and assessed $50 COSts. Tidwell was hired by Dr. Safman to deal with a flooding problem on the Doctor's residential property, attributed to the property owners association. Dr. Safman stated Tidwell told him one of the anorneys in the firm was a member of the POA, but did nor explain the significance of the Statement. Options were discussed, but Dr. Safman told Tidwell he had already hired engineers and landscapers who told him the problem was entirely that of rhe POA. Linle progress was made and in July 2002 Dr. Safman insrrucred his attorney to file suit. According to the doctor, Tidwell then told him he had a conflier of interest due to his law parmer being involved with the POA and Tidwell could not pursue the requested litigation. Dr. Safman had been billed almost $1,500 by Tidwell. Tidwell failed to adequately and timely explain the conflict possibility to his client, and failed to terminate the representation when his representation became materially limited by his partner's involvement with the POA.

GAIL THORNTON SEGERS, #97233, of Fayeneville, in Comminee No. 2003-045, by Order filed September 3, 2003, on a complaint by Carrie May Hodges, for violations of Model Rules 1.1, 1.3, and 8.4(d), was cautioned and assessed $50 costs. Segers was hired in September 2000 to represent Hodges in a divorce and custody case. Segers failed to cimcly answer interrogatories. An order compelling discovery was entered, but Segers failed to provide satisfactory responses, and the morion for sanctions was renewed by opposing counsel. The court excluded some of Hodges' witnesses and some proof due to counsel's failure to comply with discovery, and ordered Hodges to pay $481.24 in attorney's fees, resulting in her paycheck being garnished. Segers responded that she reduced her bill by the amount her client had to pay in attorney fees to

Jack Davis

Sid McCollum

Bob Hornberger

Frank Hamlin

INC 500 President Clinton Avenue, Museum Center, River Level Little Rock, AR 72201 501-376-2121 1104 South Walton Blvd., Suite 8, Bentonville, AR 72712 479-271-2237 423 Rogers Avenue, Suite 101, Fort Smith, AR 72902 479-783-1776 Vol. 38 No. 4/F"1I 2003

TI,e Arbns"s Lawyer

HIPAA continued from page 25 lO

E.x-husband's anorney. because the discIDsu"

was not done "knowingly."

onetheless, the

Office of Civil Rights could impose administrative remedies against Nursing Home for, among other things, failure to effectively train or to sanction the employee for the unaurhorized disclo-

9. 10. II.

45 CER. § 164.510(b). 45 CER. §164.510(b). 45 CER. § 164.506.

33.

12.

Rules & Regs for Hospitals and Related

34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55.

Insrirurions. § 14(A)(l8). 13.

sure, or failure ro mitigate any harmful conse-

quences. There would be no sanctions against Ex-husband's Anorney for usc of Patient's PHI because Anomer is not a covered entity, and is

therefore

nOt

governed by the HIPAA enforce·

menr starure.

Crcdenrialing Specialist did knowingly obtain and use PHI in a manner inconsistent with his job function. and arguably disclosed PHI know-

14. 15. 16. 17. 18. 19. 20. 21.

ingly, at least indirectly. He would be the most

likely person of the three referenced here

face

sanctions. However, HHS probably would nOt fine or penalize Credemialing SpecialiS[ under these facts, but, again, could impose ahernative sancdons against Insurance Company for failure to adequately train its employees.

CONCLUSION The questions set forth above are merely examples of the myriad HI PM-related simations

22. 23. 24. 25. 26. 27. 28. 29. 30.

thM arise each day for a covered emity. No doubt covered entities believe that each day of HII'M

Stt

definition of "payment" in 45

CER. §164.501. 45 CER. § 164.501. 45 CER. § 164.502(b). 45 CER. § 164.514(d)(2). 45 CER. § 164.514(d)(3). 45 CER. § 164.514(d)(5). 45 CER. § I64.530(c). 45 CER. §164.530(c)(2)(ii). Sg; HHS. Office of Civil Righrs Privacy Guidance (as revised April 3. 2003). 45 CER. § 164.508. 45 CER. § 164.508(c). 45 CER. §164.530(b). 45 CER. §164.530(a). 45 CER. § 164.502(g). Ark. Code Ann. §28·68·20 I. 45 CER. § 164.524(c)(4). 45 CER. § 164.514(h). These include court orders, search warrants, grand jury subpoenas, subpoenas

45 CER. § 164.512(e)(iv); '" also. supra Note 29 defining "qualified protective order."

65 Fed. Reg. 82,517. 45 CER. § 164.522(a). 45 CER. § 164.522(b). 45 CER. § 164.524. 45 CER. § 164.526. 45 CER. § 164.528. 42 CER § 483.1 0(b)(2). See 45 CER. §160.202. 45 CER. §164.524(b)(2). 45 CER. §164.524(b)(I). 45 CER. §164.501. 45 CER. § 164.501. 45 CER. § 164.512(d). 45 CER. § 164.528. 45 CER. § 164.528(b)(2). 45 CER. § 164.528(c). 45 CER. § 160.103. 45 CER. § 164.530(a)(I)(ii). 45 CER. § 164.530(d)(I). 45 CER. § 164.530(d)(2). 45 CER. § 164.530(g). ~ OCR Fact Sheer. How to File a

compliance efforts is itself a "test.".

or SUlllmons imud by a judge or magistrate; and administrative orders issued

Complaint, at

during the course of an administrative

hnp://www.hhs.gove/ocr/privacyhow-

Endnotes

procuding. 45 CER. § 164.512 (e) and (I).

The Privacy Rules are codified at 45

31.

A qualified protective order is defined

CER.• Parts 160 and 164.

under the Privacy Rules as an order or

Preemption provisions are comained in

3. 4. 5.

45 45 45 45

stipulation by the parties (0 the action that prohibits the parties from using or

7. 8.

CER. CER. CER. CER.

Part 160. Subpart B. § 164.520. § 164.520(c)(2)(i)(B). § 164.520(c)(2)((ii).

disclosing the PHI for any purpose other than the litigation or proceeding for which the records have been requested; and requires either the return or destruction of the PH I (including all copies) at the end of the lidgation or proceeding.

Office of Civil Rights, Frequemly

Asked Quesrions. #330 Uuly 2003). 45 CER. 164.520(c)(3); 45 CER. § I64.508(b)(3). 45 CER. § 164.510(a).

32.

45 CER. § 164.512(e)(I)(v). 45 CER. § 164.512(e)(l)(iii)

AV rated Little Rock law firm (litigation / trial / appellate practice) seeks associate with strong academic record.

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34 The Arkansas Lawyer

www.arkbar.com

Health Information Privacy

w.htm

56. 57. 58. 59. 60. 61. 62.

45 CER. § 164.520(b)(vi). 45 CER. § 160.103. 45 CER. § 164.502(e). 45 CER. § 164.504(e)(2)·(4). 67 Fed. Reg. at 53265. 45 CF.R. § 164.504(e)(I). 42 U.S.C § I320d·6; 68 Fed. Reg. 18902. No. 74 (April 17.2003) pro· posed rule ro be codified at 45 C.ER.,

63. 64.

Subparr E. 68 Fed. Reg. ar 18897. !;l

In Memoriam cleaning lip corrupt politics in Hot Springs.

It was this cleanup thar "made McMath the front runner in the 1948 Democratic guber-

SIDNEY SANDERS McMATH Sidney Sanders McMath, former Governor of Arkansas, World War II war hero, and prominent Litde Rock attorney. passed away October 4 in his Little Rock home. He was 91 . His celebrated life began June 14, 1912 near Magnolia "in a dogtrot cabin on the 'McMath Homeplace.'" 1ÂŁ was Flag Day. (Arkansas Democrat-Gazette, Ocrober 6, 2003.) He came from a family rich in military history and service including one ances[Of who was a Revolutionary War soldier; an uncle who was killed in the Texas War of Independence; and two grear-grandfathers who fought in the Civil War. Later he would follow in his family's military foorsreps. McMath's youth was spent largely in the rural South, where at age eight he scarred picking corron for a penny a pound. Ar the age of to, his family moved to Hot Springs where he nor only stepped foor onro his first paved road, but where he also had his firsr opportunity to go to a public school. "Picking conan succumbed to hawking newspapers to tourists, horses unsaddled for

cars, and tales for movies and books (Arkansas Democrat-Gazette, October 6, 2003). He entered Henderson State Teachers College in Arkadelphia after graduating from Hot Springs High and after one year he hirchhiked to Fayetteville ro enroll in the University of Arkansas. In 1936 he graduated with a Bachelor of Arts and law degree. Afterward he received a Marine Corps Reserve commission and opened a law office in HOt Springs. "With World War II looming, he volunreered in August 1940 for active dury as Marine lieutenanr and left town 'before the ink could dry on my law office shingle,' as he pur it" (Arkansas Democrat-Gazette, October 6, 2003). He received a battlefield promotion to lieutenant colonel and was awarded the Silver Scar and Legion of Merit. His military career would span 30 years, with him retiring as a major general. Upon his rerum ro Hor Springs, the charismatic McMath was e1ecred prosecuting attorney and has been credited with

natorial primary. In that era, Democratic nomination in Arkansas was tantamount to election" (Arkansas Democrat-Gazette, October 6, 2003). He served [wo terms as Governor, during which time he paved roads all over the state, built the med school, repealed the "whites only" rule for rhe Democratic Party, improved welfare-assistance for the elderly, and insisted on bringing electricity to rural counties. After serving as Governor, McMath went back to trial work, teaming up with longtime partners and friends, Henry Woods and Leland Leatherman. "The three established their law firm and dedicated their practice to representing the rights and interests of workers, victims of personal injury and consumers" (www.mcmathlaw.com). McMath's service and dedication to the profession was outstanding. He was a member of the Arkansas Bar Associarion, where he was awarded its Outstanding Lawyer Award III 1981; the Arkansas Bar Foundation; Pulaski County Bar Association; American College of Trial Lawyers; and the Inner Counsel of Trial Lawyers. He also served as president of the International Academy of Trial Lawyers. "The concept of freedom, equality of opportunity and dignity for all citizens is the basis and bulwark of our national pride and our nation's strength. America's passion for equal justice is the unifying force that binds us together. However, experience has taught us that these human rights are nor secure unless they can be made good by a lawyer in a court of law" (from www.mcmathlaw.com. which excerpted it from Trial Lawyer, written by McMath). Although McMath had gone blind in recent years, he was able to finish his memoir, Promises Kept, which was just recently published by the University of Arkansas Press. McMath was predeceased by his first wife, Elaine Boughton, in 1942 and his second wife and partner for almost half a century, Sarah Anne Phillips, in 1994. He is survived by his wife, Betty Dortch Russell; five children, Sandy, Phillip and Bruce McMath. Melissa Hatfield and Patricia Bueter; ten grandchildren; and one greatgrandchild.

VoL 38 No. 4/Fall 2003

The Arkansas lawyer

In Memoriam Dillahunty was also a member of The Omicron Delta Kappa (OKD) honor society, Christ the King Church and the National Association of Former U.S. Attorneys. He is survived by his wife of 54 years, Emma Cox Dillahunty; a daughter, Sharon Kaye Dillahunry; and a sister, Barbara Carrington.

MARK DENNISTON

JUDGE W.H. "SONNY" DILLAHUNTY Judge W.H. "Sonny" Dillahunty, 2001 recipient of rhe Arkansas Bar Association's Ourscanding Lawyer Award, died August 2 in his Little Rock home. Dil1ahumy. who served as U.S. Attorney for rhe EaStern District of Arkansas under Presidents Johnson, Nixon, Ford and Carter, began his legal career at the University of Arkansas School of Law where he received his LL.B. in 1954. After graduation, he went iIHo private praccice in West Memphis before being elected ciry attorney. He was re-elected to this position five times.

In 1997 he was appointed Pulaski County chancery judge. In 1999 he was appointed special justice for the Arkansas Supreme COUft, and he was appoimcd special member and chairman of the Arkansas Stare Police Commission. An anicle in the Arkansas DemocratGazette quoted U.S District Judge Robert Dawson as saying, "Sonny taught a generation of young Arkansas trial lawyers how they should act and how to be prepared. He handled all cases the same whether they were small or large. He was a tireless worker." Dillahunry was a member of the Arkansas, Pulaski and American Bar Associations. While a member of the Arkansas Bar Association, he served repeatedly on several committees, including the Group Insurance Committee, the Senior Task Force and Unauthorized Practice of Law Committee. He was also the originator and founder of the William Ovenon Inn of Coun in Pulaski County. 36 TIle Arkansas La\\ycr

VV'vV\fII.arkbar.com

Mark Travis Denniston, 48, died in his Fayetteville home June 25. A Russellville native, Denniston was in private practice in Fayeneville, and he also served as a Washington County deputy prosecutor. Formerly he served as prosecuting artorney for West Fork, FarmingtOn and Prairie Grove. He was a member of the Arkansas Bar Association, where he served on the Group Insurance Committee; the Fayetteville Humane Society; and the First Chtistian Church of Russellville. He is survived by his life panner, Marsha Seidenschwarz; his mother, Gireta Smith DennistOn of RusseUeville; a brother, Tom Denniston of Sherwood; and twO sisters, Helen M. Dennisron and Janet Denniston, both of North Little Rock. Memorials may be made to the Univeristy of Arkansas for Medical Sciences for cancer research, or the Humane Society.

JASON R. HALL Jason R. Hall of Fayetteville died July 21 at his home. He was 30. Born in Champaign, Ill., he received his bachelor's degree from Hendrix College and his law degree from the University of Arkansas School of Law. A real estate attorney, he was a Methodist and residenr of Fayetteville since moving from Fairview in 1995. He is survived by his father and stepmother, Aaron and Terri Hall of Flippin; twO brothers, Aaron Hall Jr. and Kenneth N. Hall, both of Fayetteville; and paternal grandfather and step-grandmother, Nola and Loretta Hall of Flippin. He was preceded in death by his mother, Kitty Hall, and paternal grandmother, Ernestine HaiL Memorials may be made to Leukemia Society of America.

COLONEL C.E, RANSICK Colonel C.E. Rallsick (1913-2003) served as Executive Direcror of the Arkansas Bar Association and the Arkansas Bar Foundation from 1969-1983. It was his second legal career, and it followed 26 years of service as a Regular Army Colonel in the Judge Advocate General's Corps. His military career merited three Army Commendation Medals, two Legion of Merit Medals, and over 25 other commendations. During his military career, Col. Ransick served in NewfouncUand, Germany, Washington, D.C., and Hawaii. His Association and Foundation careers were marked by his designation as an honoree Fellow of the Arkansas Bar Foundation, the establishment of the C. E. Ransick Award of Excellence in his honor and recognition by the American Bar Foundation as its first Trustee Emeritus. In a memorial resolution honoring Col. Ransick, the Board of Governors of the Arkansas Bar Association pointed out that among other things, "He played a leading role for the Arkansas Bar Association and the Arkansas Bar Foundation in the building of the Arkansas Bar Center." He is survived by his wife of 59 years, Clarine Leonard Ransick; six children, Sandra Newkirk of Harper's Ferry, W. Va.; Eric Ransick of Denver, Colo.; Scott Ransick of Tucson, Ariz.; Colonel (Ret.) Jim Ransick of Washington, D.C.; Mark Ransick of Austin, Texas; Cindy Radle of Fredricksburg, Texas; as well as nine grandchildren and three great-grandchildren.

The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt ofthe ftllowing memorial, honorarium and scholarship contributions received during the period July 1, 2003 through September 30, 2003:

IN MEMORY OF FERN MURRAY CLAYCOMB Tom and Debbie Daily IN MEMORY OF ANDI COLLINS Judge William R. Wilson, Jr. and Cathi Compton

Plastiras Law Firm

Barbara Pollack Lucretia H. Ransick Scott and Myra Ransick Me. Ben E. Rice, Rice Law Firm

Dennis and Jane Shackleford David Solomon

Judge John and Marierra Srroud IN MEMORY OF JUDGE W. H. "SONNY" DILLAHUNTY Judge Raben Fussell Martha Huey William A. Martin

Judge John B. Plegge Dr. Robert R. Wrighr and Judge Susan Webber Wright IN MEMORY OF LUDY DUDLEY Judge William R. Wilson, Jr. and Cathi Compton

IN MEMORY OF CLINT HUEY Judge Raben Fussell IN MEMORY OF COL. C. E. RANSICK Don Hollingsworth

Mr. and Mrs. John P. Gill IN MEMORY OF COL. C. E. RANSICK, DESIGNATED TO THE COL. C. E. RANSICK SCHOLARSHIP FUND Arkansas Bar Association Adrienne and Steve Babiak

Joseph L. Brandhuber Compass Club

Barbara Tarkington

Dr. Roberr R. Wrighr and Judge Susan Webber Wright Paul and Marcella Young Zick, Ransick, Julian, Weiss & Associates, Inc.

IN MEMORY OF DR. ROSENZWEIG Judge William R. Wilson, Jr. and Catru

to the 106th Arkansas Bar Association Annual Meeting

Compton

If you only attend one

IN MEMORY OF PEG SMITH Stephen Engstrom William A. Martin

meeting all year, make it

Dr. Raben R. Wright and Judge Susan Webber Wright

this one.

Mark Your Calendar

IN MEMORY OF MRS. MARGRET WYNNE

Now

Martha Huey

for the Arkansas Bar HONORARIUMS

Association, Arkansas IN HONOR OF MARK GRAY Judge William R. Wilson, Jr. and Cathi

Judicial Council

Compton

Joint Annual IN HONOR OF DAVlD SOLOMON

Meeting.

Mr. and Mrs. Robert Compton

Jack C. Deacon Winslow and Katherine Drummond

Donald Ellermann W. Denr Gitchei Judith Gray Roberta Groninger

Dean W Gudge Cyril and Betsy Hollingsworth Martha Huey Raben L. Jones, Jr. Jerry and Carolyn Julian Carmen Marriott William A. Martin

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June 9 -12, 2004 Arlington Hotel

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Mr. and Mrs. Geotge McClain Vol. 38 No. 4/Fall 2003

TI,e Arbnsas Lawyer

President's Report from page 3 and federal district cases at the same time),

the phrase: "and (history includes arkansas)" works even hetter. (Within the Federal Appeals Court database, the field called "history" comains the name of the discricr court from which appeal is taken.) OUf next tip was developed at the suggestion of Association Governor Bob Young of Paragould. Bob noted that, while Arkansas VersusLaw searches the Arkansas Code and finds any statutes matching the search criteria, it does not Facilitate browsing the Arkansas Code irself. The fIX is simple. From the Association's web page click "law links." From that sub-menu click "Arkansas Code." Shazam! A fully

browsable version of the Code is at your service. The Code has opened in a new window. If you minimiz.e iliar window (click on cute little «_.. sign), you are back at Association's website. ready ro enter Arkansas VersusLaw. When you find a statute in response to your Arkansas VersusLaw query. reopen that minimized Code window and browse the vicinity of the statute which Arkansas VersusLaw found for you. Today's final tip comes from Finis Batchelor of Van Buren. Finis uses Arkansas VersusLaw to produce electronic advance sheets of Arkansas decisions. (We have modified his procedure to make it also wotk on Eighth Circuit cases.) The trick is to date-limit the search. For example. if it is Monday and you want to know about cases decided the previous week. fill in the "from" date on the date-limiter with the preceding Monday. (You do nOt need to fill in the "to" date.) Then, enter the query "arkansas" and search away. You will find all the cases decided that week. If you include the Eighth Circuit in your search you will only rerrieve cases using the word "arkansas" which. as observed above. is good but not perfect. If you are obsessed with perfection, search the Eighth Circuit separately. and use the query "history includes arkansas" along with your datelimiter. If you have a suggestion for "Arkansas VersusLaw Tips and Tricks" we would like to hear from you. Send it. via email, co thicks@arkbar.com. We will publish them as space allows. •

38 The Arkansas La""e,

www.arkbar.com

Tort from page 28 212 (Michie Supp. 2003). Ark. Code Ann. § 16-55-201. These provisions concerning fault allocation do not apply to actions not involving personal injury or property damage, for example. actions based on theories of defamation, privacy violation, trespass. nuisance. illterference with contractual relationships. malicious prosecution. deceit, conversion. nonmedical professional malpractice, or unfair competjtion. See id. § 16-55201 (a). Whether the new provisions on fault allocation apply to claims of outrage. breach of warranty. false imprisonment. and other theories bordering on personal injury may depend on the facts of individual cases and will require judicial interpretation. 3. Robert B LeAat, Th, Civil jrmict

R,ftrm Ace and lh, Empty Chair, 2003 4.

5. 6.

8. 9. 10.

II.

12.

Ark. L. Notes 67. ARK. CODE ANN. § 16-55-202(a). ld. § I6-55-202(b). Defendants setding out before trial could also receive fault allocations, as allowed under current Arkansas practice. See id. § 16-55-202(b)(I); Henry Woods & Beth Deere, Comparative Fault § 13:15 at 285-86, § 13:19 at 300-01 (3d ed. 1996). ARK. CODE ANN. § 16-55-201(a). !d. § 16-55-205(a). ld. § 16-55-16-55-205(b)(I) (emphasis added). td. § 16-55-203. These reallocations apply only to compensatOry. not punitive, damages. !d. § 16-55-203(1). See, ~.g., Advocat. Inc. v. Sauer. _ Ark. ~ III S.w3d 346 (Ark. 2003) ($63 million punitive award against corporate owner of Mena nursing home, reduced by two-thirds by Supreme Court shortly after conclusion of legislative session). Unlike other sections of the new law, which contain explicit limitations on their scope of application, see ARK. CODE ANN. § 16-55-20 I (virtually abolishing joint liability in personal injury and property damage cases only) and § 16-55-213 (remicting venue in specified classes of cases, not limited to personal injury and property damage cases), the punitive damage sections contain no such limitations. See §§ 1655-206 to -211.

13. S" ARK. MODEL JURY INSTRUCfIONS (Civil) 2218 (4th ed. 1999) (formerly AMI 2217); National By-Products v. Searcy House Moving Co., 292 Ark. 491,731 S.W.2d 194 (1987). 14. ARK. CODE ANN. § 16-55-206. 15. S"Stein v. Lucas, 308 Ark. 74, 78-79, 823 S.W2d 832, 834 (1992); Renfro v. Swift Eckrich, Inc., 53 F.3d 1460, 1465 (8th Cir. 1995). 16. ARK. CODE ANN. § 16-55-207. 17. !d. § 16-55-208. 18. td. § 16-55-211. 19. !d. § 16-114-209(b)(I). The experts signing the affidavits do nOt have to be within the sanle specialties as the medical care defendants. Campa" id. § 16114-206(a)(I) & (2). 20. Jd. § 16-114-209(b)(2) & (3). 21. Jd. § 16-55-213(e). 22. The law provides new venue rules for other types of actions, including tort actions, and these rules permit claims to be brought whete the plaintiff resides. where an defendant individual resides or where a defendant entity has its principal place of business. or where "a substantial part of the events or omissions giving rise to the claim OCCUtS." Jd. § 16-55-213(a). However, actions for medical injury are explicitly excluded from the operation of this provIsion. 23. !d. § 16-114-206(a)(l) & (2). 24. Catheyv. Williams, 290 Ark. 189,718 S.w2d 98 (1986). 25. Su ARK. CODE ANN. § 16-114206(a)(3). 26. S" gtntrally BARRY R. FURROW ET AL., Health Law § 7-2 (2d ed. 2000). 27. ARK. CODE ANN. § 16-114-210. 28. Jd.§ 16-114-211. 29. !d. § 16-114-208(a)(I)(B) (emphasis added). 30. Montgomery Ward & Co. v. Anderson, 334 Ark. 561, 976 S.W2d 382 (1998). 31. ARK. CODE ANN. § 16-114-208(c)(I). 32. Among the law's other provisions are changes in venue rules, id. § 16-55213. see supra note 22i protection for medical directors of nursing homes against liability reallocations, § 16-55204; and tolling of the statute of limitations under certain conditions in medical injury actions, § 16-1 14 212. 33. Su, ~.g., Leflar. supra note 3.

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