PUBLISHERArkonsas Bar AssociationPhone: (501) 375-4606

Fax: (501) 375-4901Homepage: www.arkbar.com

E-Mail: aconaway@arkbar.com

EDITORAnM C0rumNlY

GRAPHIC DESIGNSilrQ Lam/is

EDITORIAL BOARDPhilip E. Kaplan,. Chair

Judge WLiey A. Branton, Jr.Leigh M. ChilesMilton Fine, []

Morton GitelmanJ. Leon HolmesStuart P. Miller

Christopher TravisBrian Anthony Vandiver

David H. WiUiams

OffiCERSPresident

Thomills A. Dillily

Board of Governors ChairD. Pria Mush.J.11

President-EledFred S. Ursery

Immediate Past PresidentH. Murray Clayc:omb

Secretary-TreasurerWilliam A. Martin

ParliamentarianCindy Thyer

Young Lawyers Section ChairPaul Dumas

Executive DirectorDon Hollingsworth

Associate Executive DirectorJudith Gray

BOARD OF GOVERNORSSteve BinghamAnthony Black

Judge Wdey Branton. Jr.Niki CungTom CurryBoytt Davis

Jeannette DenhamLance Gamer

Robert "Skip" HenryGwendolyn Hodge

Jim JulianPhilip Kaplan

Sean KeithChalk MitchellFrank MorledgeRosalind Mouser

Donna PettusJames M. Simpson. Jr.

James D. SprottEddie Walker

Robert E. Young

UAISON MEMBERSJudge Ted Capeheart Steve ShultsRon D. Harrison Jack McNultyDon Hollingsworth Carolyn 8. Wothe"J'OOO

De Arbuu Lawyao (lISPS SC64IO) is published quarter­ly by the Atb.nNs au Association. Periodicals po6Qgefnld at Utde Rock, ArkAnSaS. POSTMASTER: 5nldaddreY changes 10 1Jle Arka",u lAwytr, 400 WestMarkham. Uttle Rock. Arkansas 72201. Subscription pric.to non·rm'lnbn's of the Arkansas Bar AS5Odallon $25.00 peryear. Any opinion expressed herein is that of the author.and not necessarily that of the Arkansas Bar Association or1Jlt ArkanSll$ LAwytr. Contributions to The Arkll".JuLawy,r are welcome and should be sent in two COpl6 toEDITOR. The Arka,,'a, Lawyer. 400 West Markham. UttleRock. Arbnsu 72201. All inquiries regudlng advertisingshould be Je'lt to Editor. lJIt ArbJl$ll$La~,at thea~addMl. Copyright 2003, Arbnsu Bar Asaodation. Alllights reerwd..

The Arkansas

awerVol. 38. NO 4

features

8Report on the 2003 Legislative SessionCharles L. Schlumberger

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

14HIPAA for Ostriches or the Otherwise UninitiatedBizabeth Andreoli, Charles B. Cliett, Jr. andElisa M. White

26How the Civil Justice Reform Act ChangesArkansas Tort LawRobert B Leflar

Contents Continued on Page 2

The Arkansas

awerVoL 38. 0 4

in this issueThe Power of Your Membership

CLE Calendar

Lawyer Disciplinary Actions

In Memoriam

Arkansas Bar Foundation Memorialsand Honorariums

Classified Advertising

Ad Index

6

29

30

36

37

40

40

columnsPresident's ReportThomas A. Daily

Executive Director's ReportDon Hollingsworth

3

5

CHii)Arkansas Bar Association

400 IV. Markham lillie Rock, Arkansas 72201

HOUSE OF DELEGATES

Delegate District I·SE: Ro~n F. Thompson, III Delegate District 2-5E: Katharin~ C. WilsonDelegate 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'r5Delegate District 10-5E: Oavid L Sims. Anthony AHilJiard Delegate District 11·5E: 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·SE: James Ralph Jackson

Delegate District I-NW: Edwin N. McClure, Lisa L Kelley, Hardy Croxron, Jason B. KelleyDelegate District 2-NW: Tim Snively, Matthew R. Durrett, Chris R. R«d. April R~ Shy, Cristi lkaumom, David J. Whitaker,

Michad J. Hodson, Charles Harwell, Raymond iblock, Susan Duell-MitchdlDelegate 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 KelleyDelegate 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 Amendmentsfor a Bit of Fine Tuning

This ovember OUf Association's mem~

bers will be asked to vote their approval offouf amenclmems (Q our consricurion. Allfouf were referred for this vote by yourHouse of Delegates. Here is what and why.

In recent years, you have approved asweeping modernization of our governance.Formerly OUf House of Delegates. a large.diverse body of lawyers. was charged withrunning the Association on literally a day­by-day basis (with considerable help fromour fine staff, of course.) Because that wasimpractical. an Execueive Council (really anexecutive commiuce composed of delegatesand elected by delegates) began doing thatjob under the auspices of the House. Whenwe reorganized we transformed theExecutive Council into the Board ofGovernors. We provided for direct election,by district. of governors. and left the Housewith the responsibility for broad, enduringpolicy issues. For example, the Association'sbiannual legislative package is set by theHouse of Delegates. However, currentArticle "XV of our constitution still requiresan affirmative Vote at a regular or specialelection of the entire membership beforethe association can sponsor or even JUStsupport a proposed amendment [Q me stateor federal constitution. (Paradoxically. nosuch vote is required if we oppose such aconstitutional amendment.)

The existing rule is unnecessary andunwieldy. Here is a topical example. Mostof us believe that Arkansas' legislativeprocess has suffered severely by legislativeterm limits so strict that mey virtually man·date a forever-inexperienced GeneralAssembly. The last legislative session pro­duced a proposed amendment liberaliz­ing these term limits. It is something whichwe should support and I am sure we will,but we really should have been able to sup­port it from the beginning, while it wasstill before the Legislature. At one point itwas suggested that the proposed amend-

ment should include imposing term limitsupon our judges. I, for one, would op·pose that one with all of my resources.There lies the problem. During the mostcritical time period (when me Legislatureis considering the proposed amendment)there is not enough time to obtain auth­ority for suPPOrt. Further. special electionsare expensive. I would rather spend ourdues delivering member benefits likeArkansas VersusLaw.

The proposed amendmelH putS thisauthoriry with our Delegates, where itbelongs. 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 Boardof Governors to meer four times each year,whether it needs to or nor. Ofren it doesnor need roo These meetings cost thoseinvolved time, and the Association money.We propose to reduce the number ofrequired meetings of the Board to three and,if more meetings are needed, call specialmee(Jngs.

The firsr of our twO annual House ofDelegates meetings is held on the Saturdayof our Annual Meeting. The schedule forelection of new house members almost runsinro mat date, especially when no nomina­tion occurs during me initial election ofnew house members. When that happens.me vacancy is re-advertised. Then, if thereis still no qualified nominee, the vacancy isfilled by presidential appointment. Byshortening both me time between re-adver­tising the vacancy and closing nominationsand the time the vote irselfby five days each(thirty days to twenty-five days in bothcases) we eliminate the time crunch.

For several years, we have had a categoryofAssociation membership called "AssociateMembers." Those members are licensed to

practice law and in good standing, but theirlicensing state is not Arkansas. Most of

these members are on the faculty of one ofour law schools. Some have simply retiredhere. A few others are employed as in·housecounsel by national corporations in thosecompanies' Arkansas corporate offices.

These members are currently required tobe Arkansas residents. They pay the samedues as the resr of us and devote valuabletime to our task forces, committees and sec­tions. They are not eligible to hold office ormembership in the House of Delegates..£!:.Board of Governors.

We propose ro open this class of mem­bership to all licensed lawyers in goodstanding who are full time employees ofbusiness organizations with regular businessin Arkansas. Thus, for in-house counsel,the requirement of Arkansas residency willbe removed. Some of our smaller, more spe­cialized secrions (Natural Resources comesto 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 willarrive 111 ovember. Please vote "yes".

Arkansas Versuslaw UserTips and Tricks

As our members learn to use ArkansasVersusLaw some have learned tricks that areworth sharing. To that end, we will publishsome of their lips and Tricks in the nextfew issues of Th~ ArkomtlS Lawyu.

Here is one from yours truly. Whenincluding Eighth Cir uit cases in a searchwithin the AR Conrenr library. end yourquery with "and arkansas." You will thenalmost completely limit your hits to appealsof cases arising in Arkansas, although, occa­sionally, some other opinions will containthe word "Arkansas." If you are only search­ing Eighth ircuit cases (as opposed to state

President's ReportContinued on page 38

Vol. 38 No. 41Fall 2003 TI,e Arkansas lawyer 3

What Members Are SayingAbout Arkansas VersusLaw

I use Arkansas VersusLaw almost daily for legalresearch. Thank you for making access to ArkansasVersusLaw a part of our bar association membership.Paul Gehring, Fayetteville

I've just started using Arkansas VersusLaw. What agreat benefit from he Arkansas Bar Association. fnow find myself using-.itmore han WestfawJim Crouch, Springdale

Arkansas VersusLaw is a great member benefit.Outstanding job by our ssociation.David Bridgforth, Pi e BI

I have found Arkansas VersusLaw to be a suitablesubstitute for other, major computer researchproviders. Searches are not too difficult to run,results come in just as fast, and you can't beat theprice. Most of all, I ran an identical search inArkansas Versus Law and West/aw and received theexact same published cases in both services. I haveconfidence in Arkansas Versus Law.Jerry Larkowski, Little Rock

ow tha rkansas VersusLa is up and running, Ihave aropped all of my orner research subscriptions.Although I am of such an age that I may never beentirely comfortable sitting at a keyboard, asopposed to holding a bound volume in my hands,the format is sufficiently user-friendly that even I canwalk myself through the tutorial and put the systemto work.By the end of the second month, the money I'vesaved has more than covered the annual cost of aregular and sustaining membership in the ArkansasBar Association. Arkansas VersusLaw is a great bene­fit and a great research tool. I thank the Associationfor making it available.Steve Davis, Harrison

I have tried Arkansas VersusLaw and find it extremelyhelpful.Mary Beth Sudduth, Ft. Smith

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

Don Hollingsworthemail: dhollingswonh@arkbar.com

Report

Your Member Directory ­Another New Member Benefit

Executive Director's

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 MemberDirectory was developed by our Website

Oversire Committee which w3nred mem­

bers to be able to access up-to-date comaetinformation 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 andemail. Updates to your contact informa­

tion 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 password­

protected 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 Organiz­

ational Directory. Our traditional Mem­

bership 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 pre­

pared 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 ques­

tions 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 exam­

ple, 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 5

The POWER of ~Arkansas VersusLaw 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 to the present. Your Association and VersusLaw will be expanding the

Arkansas legal products during the remainder of 2003.

Arkansas VersusLaw 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 ofAssociationHandbooks to Suil Ytmr Personal Style

Select from among I!ri.nI offerings including [he Arkansas FormBook, HI PAA Handbook, Domestic Relations, Bankruprcy,

Probate Law, Handling Appeals or Real Estate Title Standardsin Arkansas.

OR

Opr for the simplicity of a CD ROM containing anyone orany 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.

To otdet call 501-375-4606 Ot 800-609-5668, emailrhicks@arkbar.com, or visit www.arkbar.com for further

information.

6 11,e Arkansas lawyer www.arkbar.com

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.

Online Member Directory

www.arkbarcorn

Access Restricted [Q Association Members

Most Up~ro-dare and Accurate Contact

Information for Arkansas-Licensed Atrorneys (whether residing

in Arkansas or our of stare),

including LIVE email addresses

our Membershiparkansasfindalawyer

An on-line attorney

directory for

Association members

only. Review the

directory by going towww.arkbar.com

c.JI 501-375-4606

to join.

ClE Seminarsat Reduced Cost

Most comprehensive

statewide LE program, and

members pay reduced

tuition!

Section Web Pages

Section web pages atwwwarkbarcorn.

Click on ProfessionalResources and men

Sections.

Credit CardProgram

The MBNA Platinum

Plus MasterCard includes

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.

Insurance Discounts

Call Rebsamen Insurancear 501-664-8791

or 888-272-6656 rorAssociuion discounts on:

• Professional Liability• Group Term Life Insurance

• Accident• Hospital Indemnity• Overhead Expense• Disability Income• Long-Term Care• Critical Illness

Delivery Service

Call UPS ar 800-325-7000and identify yourself as amember of the Arkansas BarAssociation, or use accoumUCP290001685.

Retirement Plan

ABA Members RetirementProgram. Call 800-826-8901

or visit the website atwww,abaC(rjrcmc:or com.

Annual Meeting

The

Annual Meeting or rhe

Association each June is

mended by over \,000

Arkansas attorneys and hun­

dreds of fumily members.

It is one of the premier

Annual Meetings in the

United States.

Publications FREEto Members

• Annual Mnllbu Listand Orga"izational DiTrclory

Cuidr to ArkonsaJ StntuU ofLimi/a/iom

Tk Arkan= LaUlJ"

Nnusbul/rtin

Arkansas Law R~lJinu

UALR Law R~vj~w

Legjsloljv~ Summary

Advisory EthicsOpinions

It's nOt aJways black and white,In me practice of law, mere's alot of gray, Your Association's

ProfessionaJ Ethics Committeecan help. \V,<hin specific

guiddines. the Committee willissue an opinion on the mem­ber's proposed conduct. Thereis an administrative charge of

$50. For derails visirWW\V,arkbar.com

Booklets & Guides

• Consumer Law (English andSpanish versions)Senior Citizens/CaregiversGuideSmall Claims CourrAtkansas Vererans'HandbookHandbook for PerwnalRepresentatives

Call 501-375-4606 ro orderor download fromwwwarkbar com

lexis-Nexis

On-line legal research

from Lexis-Nexis is

discounted

for members.

Visit www.lexis.com

or call

800-356-6548.

The Association maimains the

largest and

most accurate database of

Arkansas attorneys.

To purchase

mailing labels of members

at a discoum,

call (50 I) 375-4606.

Bar Center

Members can utilizethe conference room

or reception area at theAtkansas Bar Cemerfor diem meetings,

depositions and similar matters.

legal Career Center

Legal job listings andresume postings atwww,arkbar.coffi

Vol. 38 No. 41Fall 2003 TI,e Arkansas 1.3\':Yer 7

j

"By--charles I Sch umb~ ger

The 2003 legislative session pre­sented many challenges for theArkansas Bar Association and its mem­bers. The session marked the first realexperience with the effects of termlimits, with 36 representatives and 16senators - nearly 40% of the entireGeneral Assembly - serving as fresh­men. Furthermore, the vast majority ofthe "veterans" were in fact only serv­ing their second terms; there was verylittle institutional memory in thegroup. Additionally, the number oflawyers in the General Assembly wassubstantially diminished. In the 35­member Senate, there were only twolawyers, and only one of them, Sen­ator Jim Luker, was a member of theSenate Judiciary Committee. Therewere 15 lawyers in the 1oo-memberHouse, with seven on that chamber'sJudiciary Committee. Finally, therewere several bills that significantlyaffected the law, lawyers, and the judi­cial system. This article provides a syn­opsis of these bills, as well as twomeasures that did not pass but areexpected to be re-introduced in futuresessions.

(A) The Association's LegislationPackage.

The Association's House of Dele­gates approved a legislation packageconsisting of three measures recom­mended by the Jurisprudence andLaw Reform Committee. All of thempassed both chambers without a dis­senting vote. Act 177 (Senate Bill 153)

amended the Arkansas Probate Codeto increase the allowances to survivingspouses and minor children from$2,000 to $4,000 as against distribu­tees and from $1,000 to $2,000 asagainst creditors. It also increasedfrom $500 to $1000 the maximumamount that can be distributed to sur­viving spouses and minors for suste­nance during the first two monthsafter the decedent's death. Finally, itincreased from $5,000 to $10,000 thevalue of assets that could be sold,mortgaged or leased without notice ofhearing. We thank Bill Haught for histestimony before the committees toachieve the bill's passage.

The second measure, Act 610 (SB303), adopted the Arkansas Disclaimerof Property Interests Act. This act is animportant addition to the law govern­ing estates, trusts and probate. It pre­scribes the procedural and substantivelaw governing disclaimed interests inproperty, including partial interests,future interests, and rights of survivor­ship. Section 14 of the act providesimportant guidance regarding the tim­ing and effect of tax-qualified dis­claimers under the federal InternalRevenue Code. The Association thanksByron Eiseman, Phil Carroll and BillHaught for lending their expertise andassistance in achieving the passage ofthis measure.

The third measure, which madenumerous technical corrections to theArkansas Code to make it conform tothe provisions of Amendment 80,

actually took the form of two bills. Act1166 (HB 2471) comprises 53 pagesand focuses on statutes dealing withadoption and juvenile law. Act 1185(SB 462) is 118 pages long and coversall other statutes that needed techni­cal revision. We are indebted to themembers of the Association's Amend­ment 80 Task Force and, in particular,Professors John Watkins and KenGould for their painstaking work inreviewing the Code and preparingthese bills.

(B) Other Acts of Interest to the Bar.In addition to the Association's

package, there were several otherenactments that are of interest to theprofession. This is by no means anexhaustive list, and each member isencouraged to review a listing of theacts 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 ofthe UCC to re-adopt the "old" ver­sion's provisions for perfecting andprioritizing landlord's liens on crops;• Act 623 establishes that where thereis a conflict between the internet andhardbound versions of the ArkansasCode, the hardbound version prevails;• Act 1030 abolishes the Rule inShelley's Case;• Act 1179 empowers circuit andappellate courts to order parties tomediate civil cases.

Additionally, Act 1077 deserves spe-

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

8 TI,e Arkansas Lawyer www.arkbar.com

cial mention. This act created theArkansas Criminal Code RevisionCommission, a 19-member bodythat is charged with the task ofperforming a comprehensive reviewof the criminal code. Under theact, the Commission is to provide tothe House and Senate JudiciaryCommittees a draft of legislation pro­posing changes and corrections to thecriminal code. The last such undertak­ing occurred in 1974. This is a much­needed development that may resultin monumental reform to criminal law,including sentencing and procedure.The act provided that the Associationpresident select one member, andTom Daily appointed Jack Lassiter ofLittle Rock. If you practice in the areaof criminal law, please contact Jackwith any suggestions you may have.

Last but not least is Act 649, the so­called "tort reform" law. This measurecontains significant changes to the lawgoverning tort litigation, includinglimitations on the availability of jointand several liability, caps on punitivedamages, and significant proceduralchanges governing tort actionsagainst medical care providers. Dueto space limitations and an upcom­ing, separate article to appear in The

Arkansas Lawyer providing an exhaus­tive analysis of this act, the particularsof the changes are not discussed here.However, every practitioner in the fieldof tort litigation should carefullyperuse this new law.

(C) Other Bills of Interest That DidNot Pass.

There were several measures opp­osed by the Association that did notpass. Two of them bear particular notebecause of their impact upon thepractice of law and the judiciary, andbecause we expect them to appearagain in future sessions. They are nextdiscussed.

Sales tax on professional services.Several bills were introduced that pro­posed to apply the sales tax to profes­sional services, and to attorneys feesin particular. Due to the need for addi­tional funding for the medicaid, pris­ons and the public school system andthe comparative ease with which salestaxes can be enacted (the legislaturemay adopt a sales tax by a simplemajority vote, whereas other taxes,such as income taxes, require a three­quarters majority), we were quite con­cerned that these taxes would garner

support as the session wore on.Ultimately, all of these measures diedin committee during the regular ses­sion, but none of the budgeting mat­ters were resolved, either.

The General Assembly came backfor a special session in June to addressimmediate, non-educational fundingneeds and opted for additional tobac­co taxes and an income tax surcharge.The Governor has announced thatanother specia I session will be held inDecember to address secondary edu­cation reform and the associatedfunding issues. The estimated addi­tional cost is in the hundreds of mil­lions, and we believe that the GeneralAssembly will seriously consider anyand all funding options - includingsales taxes on professional services.Mr. McNulty and the Legislation Com­mittee will keep the Association mem­bership apprised of these develop­ments and will continue to developstrategies in response to any suchmeasures.

Recall elections. SB 378 proposeda mechanism for elections to recallconstitutional officers; members of the

ReportContinued on page 10

The Arkansas Bar Association Legislation CommitteeIts Function and OperationBy Charles L. Schlumberger

During the course of the 2003 leg­islative session, several members ofour Association inquired about theLegislation Committee, wanting toknow how the Committee's member­ship is selected, what its responsibili­ties are, and how it functions. Manypeople also wanted to know how theycan become more involved in the leg­islative process.

The composition of the Leg­islation Committee and its func­tions.

The Arkansas Bar Association's Leg­islation Committee is establishedunder Article VIII (Committees andTask Forces) of the Association'sbylaws. Under section 1(E) of ArticleVIII, the Legislation Committee is

comprised of nine members: theAssociation president and president­elect; the chair of the Jurisprudenceand Law Reform Committee (appoint­ed annually by the incoming presi­dent); the chair of the LegislationCommittee (appointed annually bythe incoming president); two at-large

members appointed jointly by theincoming president and incomingpresident-elect and who serve stag­gered four-year terms; and threemembers who are elected by theHouse of Delegates from the Asso­ciation's three Bar Districts and servefor two-year terms. The members whoserved during the 2003 legislative ses­sion were Murray Claycomb, TomDaily, Bill Haught, Charles Schlum­berger, Dustin McDaniel, DonnaPettus, Boyce Davis, Cindy GraceThyer and Mike Wilson.

Section 1(F) of Article VIII prescribesthe Legislation Committee's responsi-

CommitteeContinued on page 12

Vol. 38 No. 4/Fall 2003 n,e Arkansas LalIYer 9

Report Continued from page 9

General Assembly; and district, circuitand appellate judges. Bills of this typehave been introduced in past sessionsbut have always died in committee. Tothe surprise of many, this measurepassed the Senate late in the sessionand was referred to the House RulesCommittee, which recommended itspassage. Prior to a vote by the fullHouse, it was re-referred to the RulesCommittee, where efforts to amendthe bill to alleviate its many flawsfailed. Attorney General Beebe alsoissued an opinion casting doubt onthe measure's constitutionality, andultimately the primary sponsor with­drew the bill and directed it to interimstudy.

The Association opposed this mea­sure for three principal reasons. First, itunconstitutionally encroached uponthe independence of the judicialbranch. Second, it was unnecessarybecause Amendment 66 of the Ark­ansas Constitution already provides ameans for disciplining and, if neces­sary, removing judges for cause. Third,the bill contained no grounds uponwhich an elected official could berecalled, meaning that an officialcould be recalled for any reason, or noreason at all. We believed that such ameasure could be used to intimidateal elected officials - not only judges,but also governors and legislators - insituations in which they are required to

make hard decisions on difficult, polit­ically volatile issues. Finally, such ameasure creates governmental insta­bility that is detrimental to the inter­ests of the state and its citizens - apoint borne out by the current situa­tion in California. We will continue tooppose measures of this sort in futuresessions. Hopefully, however, theCalifornia experience will demonstratethe many, real-world problems thatrecall statutes can cause.

ConclusionThe 2003 regular session was

ReportContinued on page 40

ArLAPARKANSAS LA WYERS ASSISTANCE PROGRAM

HELPING LA WYERS FIND PERSONAL SOLUTIONS NOW.

Assists lawyers and judges, their colleagues and families, struggling with the effectsof

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Confidential Phone 501.907.2529Confidential Email harbergails@alltel.net

Website http;//www.arlap.org

10 TI,e Arkansas l<J''Yer www.arkbar.com

All over Arkansas, hundreds of organizations owe their day-to-day survival to people

lust like you. How can you help? It's easier than you think. Choose that one special

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make your mark on the world for years to come.

For more Information, visit www.leavealegacyarkansas.org, or call (877) 228 6611.

The law firm of

BARRETT & DEACONA Professional Association

is pleased to announce thal three new attorneys have joined the finn

S. Shane BakerBrandy L. Brown

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LEAVE ALEGACY·arkansas

J.C. DeaconRalph W. WaddellD.P. Marshall Jr.Robert S. JonesLeigh M. ChilesJ. Barrell Deacon

Barry DeaconPaul D. WaddellKevin W. ColeRobert J. GibsonJames Y. Scurlock, IIBerl A. Smith (of counsel)

Union Planters Bank Building300 South Church Street, Jonesboro, Arkansas 7240 I • 870-931-1700

Vol. 38 o. 41Fall 2003 TI,C Arkansas lawycr II

Committee Continued from page 9

bilities to:(1) support the Association's Lobby­

ist in promoting the enactment of billsincluded in the Legislative Packageapproved under Article X of these By­Laws;

(2) support the position of theAssociation on legislation pendingbefore the Arkansas General Assem­bly; and

(3) consider and decide the posi­tion of the Association on legislationwhich the House of Delegates has nottaken official position on and is underconsideration or expected to be con­sidered by the Congress of the UnitedStates or by the Arkansas Legislatureor 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 oflawyers who will serve as legislativecontacts to advocate the Association'sposition to legislators, and recruitlawyers to be legislative witnesses insupport of the Association's positionon legislative proposals; attend Com­mittee meetings and legislative ses­sions when the Lobbyist cannot bepresent, and perform such other tasksas are reasonably calculated toachieve the Association's Legislativegoals.

b. not support any legislation whichthe House of Delegates has rejectedwithin the immediate past 24 monthsnor oppose any legislation which theHouse of Delegates has approvedwithin the past 24 months. It shallhave authority to make changes inproposed legislation of the Asso­ciation which do not materially changethe intent or the purpose of such leg­islation and may take a position forthe Association on other legislationand proposed legislation under con­sideration or expected to be consid­ered by the Congress of the UnitedStates or by the Arkansas Legislatureor its interim Committees. During spe­cial sessions, the Committee maysponsor technical corrections to exist­ing law and poll the House of

12 nle Arkansas La~':Ycr VV'NvV.arkbar.com

Delegates on substantive matterswhich have not previously been votedon by the House.

c. not take a position on any legisla­tion unless it would have a directeffect on the practice of law or a sig­nificant impact on the administrationof justice.

The Legislation Committee'sprocess for developing the Asso­ciation's position on legislation.

The Committee meets on an as­needed basis when the GeneralAssembly is not in session. Beginningtwo to three weeks prior to the com­mencement of a regular session, theCommittee meets weekly, usually onFriday afternoons, for the duration ofthe session. In addition to theCommittee members, the Asso­ciation's executive director and lobby­ist attend these meetings. Also, anyAssociation member may address theCommittee by requesting theCommittee chair place him or her onthe agenda for a future Committeemeeting. The Committee also meetsin this fashion during special sessions,although its meetings are more fre­quent, given the compressed timingof special sessions.

Of all the responsibilities entrustedto the Committee, the most onerousand time-consuming is the one con­tained in Section 1(F)(3), under whichwe are required to develop theAssociation's position on measures onwhich the House of Delegates has notspoken. To fulfill this obligation, theCommittee reviews and considersevery non-appropriation bill that isfiled. This is no easy task. In the 2003regular session, over 2800 bills wereintroduced. Approximately two-thirdsof these bills were non-appropriationbills, meaning that your Committeereviewed over 1800 bills. To do this,we have a system whereby eachCommittee member is pre-assignedto newly filed bills, according to thelast digit of the bill number. For exam­ple, one Committee member is re­sponsible for reading all non-appro­priation bills ending with the number1, another is responsible for reviewingsuch bills ending with 2, and so on.

Each Committee member reads his

or her assigned bills and then gives areport to the full Committee at theweekly meeting. In accordance withpart (c) of section 1(F)(3), the Comm­ittee first determines which bills "havea direct effect on the practice of law ora 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 theAssociation's position, as it is requiredto do under section 1(F)(3). That posi­tion may be to support, oppose, or beneutral on the bill. Because theCommittee is comprised of lawyersfrom various specialties, we usuallyhave the benefit of having someonewho understands the bill's purposesand consequences. However, whenthe subject matter of a bill focuses onparticularly specialized areas beyondthe ken of the Committee or its mem­bers, we often will refer the bill to theappropriate section of the Associationfor further review and comment tohelp us in developing theAssociation's position. In addition, weconsider information that is given tous by Association members who ask tobe included on the agenda to addressparticular measures. In the vast major­ity of cases, developing a consensuson the Association's position is rela­tively easy: The diversity of theCommittee's composition (coupled,when necessary, with the advice wereceive from sections) provides asound and reliable base for recogniz­ing good bills, bad bills, and bills thatare well-intended but need amend­ment in order to avoid unintendedadverse effects. '

The hard situation, of course, is theone in which the bill encompassessubject matter on which different fac­tions of the bar might disagree. Onthe one hand, the Committee is sensi­tive to the "big tent" of theAssociation and accordingly it will notbe used to advocate the interests ofone group over another; on the otherhand, under Section 1(F)(3)(c) theCommittee is obligated to develop aposition on any legislation that pres-

ents "a direct effect on the practice oflaw or a significant impact on theadministration of justice." The various"tort reform" bills introduced duringthe 2003 regular session present theprime example of this conundrum. Infulfilling its responsibilities in these sit­uations, the Committee members puttheir own personal interests to theside and focus on the language of thebill-not the underlying concept ormotivations-to determine whether, ifenacted, the bill would conform to theAssociation membership's universalinterest in having "good law" that isconstitutional, free of ambiguity, andis even-handed, so that it does notundermine the fair administration ofjustice.

Lobbying and the Legislative ActionNetwork - Your Involvement in theProcess.

Recognizing the impact of term lim­its and the diminishing number ofattorneys serving in the GeneralAssembly, in 2001 the Associationtook three significant steps. First, themembership amended Section 1(F)(3)of Article VIII to include, at subsection(a), a requirement that the LegislationCommittee establish a statewide leg­islative action network (LAN). Second,the Board of Governors authorizedthe Association to hire a full-time lob­byist. Third, the Board of Governorsapproved an expenditure to subscribeto an internet-based service thatmembers could use to both beinformed of legislative developments

Many legislators have toldus that the most effectivemeans of educating themon matters of importance

to us is through individualsfrom their communities

whom they know.

and to contact their legislators.We first hired our lobbyist. A search

committee was formed, and from anattractive field of highly qualifiedapplicants 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 June2005.

The next task was to establish theLAN. The Committee members, Jackand Executive Director Don Hollings­worth collaborated on a program torecruit attorneys in each legislativedistrict 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 throughindividuals from their communitieswhom they know. By the session's endwe had over 80 active LAN members.We continue to encourage our mem­bers to become active in the LAN. Ifyou have a strong relationship withyour senator or representative andwant to help the Bar Association in itsefforts, please contact Jack. His e-mailaddress is jackmcnulty@lobbyist.com,

and his office telephone is (870) 534­5532.

Finally, the Association contractedwith VoterVoice, a company that spe­cializes in creating "grass-roots" soft­ware packages to which organizationssuch as ours can subscribe. Throughthis package, Jack and the Committeebecame "connected" to thousands ofAssociation members, and thosemembers also became "connected"to their constitutional officers and leg­islators. Of all of the measures we tookto improve our presence at the legis­lature, this was by far the one mostreadily recognized and appreciatedby the membership. We are in theprocess of negotiating a new contractthat will take us through the 2005 ses­sion.

ConclusionI hope that this article answers your

questions about the workings of theLegislation Committee. I also hopethat it demonstrates that in the Com­mittee you have a hard-working groupof colleagues who take their responsi­bilities to you very seriously and whowant to hear from you. Again, anymember who wishes to address theCommittee on a particular piece oflegislation may do so by requesting ofthe chair to be placed on a meetingagenda. Finally, and most of all, I hopethat this will motivate all of us tobecome more active in the legislativeprocess, 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 13

by Elizabeth Andreoli, Charles B. Cliett, Jr.

. --for Ostriche$

or the otherwiseuninitiated

and Elisa M. White

HIPAA Privacy Rule Compliance: Canyou pass the test? The new federal rules

governing the privacy of health information

("Privacy Rules") have b«n in effect for about

six momhs now, but there still is a learning

curve for the health provider and health insur­

ance 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 briefsum­

mary 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 multi­

ple choice questions. The article discusses the

issues raised by each question and provides the

answer.

Good luck. Don't cheat.

Background and IntroductionThe 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 regu­

lation. 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 regu­

lations: (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 trans­

actions are certain financial and administrative

transactions associated with health care claimsor 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 pro­

cedures to safeguard protected heaJrh informa­

tion 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 per­

mined or required by the Privacy Rules. The

regulations allow a covered emity to use or dis­

close PH I without written consent or authori1.a­

tion 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 assur­

ance. 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 orrequired under the Privacy Rules or if the cov­

ered entity obtains the individual patient's writ­

ten "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 pur­

pose, except when treating the individual or

when amhoriution has been granted.

Eliznbrrb Alldreoli (ufi) practicts IVirb til< IolV finll ofMifCb,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 AssociationHealth 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,alrbcare 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 trtmsflC­

tionai 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 (0 medical privacy. HIPAA pro­

vides a "basdinc" for medical privacy that can befurther tailored at the stare level. If the st2tCS'

regulations ,ue more restrictive than those rec­

ommended by HIPM. state regulations con­

trol. If the state regulations an: more permissive.

then HIPAA is the appropriate srandard.2

Covered entities arc raking HIPAA compli­

ance seriously, as they are subject lO investiga­

tions and enforcement actions by the HHS

Office of Civil Rights. discussed in morc derail

below. Ahhough H IPM does not 3mhorizc pri­

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.

The Scenario

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

his mororcycle when he collided with a ar

owned by Passenger and driven by Driver.

Following Ihe accidem, the police investigate

the scene. and Patiem. who is unconscious, is

taken to Hospital Emergency Deparrmcm by

ambulance. The Ambulance Provider leaves ilS

Notice of Privacy Practices with the Emergency

Deparrmem to give to Patielll, as well as forms

for the Hospital to complete so that Ambulance

Provider can biIJ Patiem's insurance company

for emergency services.

The police are able to identify Patient at the

accident scene and notify his parents, who arrive

at the Emergency Department about one hour

later. Patient's mother asks for Patient by name

and is tOld that he has been taken to surgery.

Mother gives billjng clerk Patient's insurance

information. The Emergency Department

Physician meets with Patielll's parentS and tells

them the known extent of Patient's injuries and

prognosis of condition.

The local newspaper investigates the accident

and learns that Patient is a notorious profession­

al hockey player. A reporter caJJs the Hospital

and stares he is writing an article about the col­

lision. Reporter asks aboul Patielll's condition.

Reporter also states he understands thai Driver

might have been intoxicated and asks the hospi­

tal representative ro confirm this.

Patient is covered by Insurance Company

through an employer-sponsored preferred

provider benefit plan. Hospilal is under con­

traa with Insurance Company as a preferred

provider. Insurance Company requires preau­

thorization for admissions, so Hospita.l medical

staff faxes medical information with a preautho­

rization form to Insumnce Company's offices.

Patient has a lengthy hospital stay, and

Utilization Management ("UM") urse at

Insurance Company asks for medicaJ records to

document the medical necessity of Patient

remaining hospitalized.. UM Nurse reviews the

records and takes them to the office of the

Insumnce Company's Medical Director ro dis­

cuss the marter, leaving the door co the office

open. A Crcdemialing Specialist happens ro be

passing by the office and SlOpS in his tmcks

when he hears Patient's name and brieRy listens

to the conver52tion. He believes that Patient

may be his old friend and fr.nerniry brother

from college. and he becomes very concerned.

Credemialing Specialist checks his training

materials and rea.lizes he can't djsclo~ Patient's

PHI oUlSide the company. That evening, he

calls another old fnterniry buddy and asks if he

has heard about "'anything happening"' to

Patient. The friend teUs Credemialing Specialist

about the accident and Patient's current medical

condition, and gives him the tdephone number

of Jlatient's parents. Credemialing Specialist

calls their home and offers 10 help in any way he

can. Over the nexf few weeks, he starlS cuning

Parents' lawn. running errands, and visiting his

old friend. Very grateful, Parents allow

Credentialing Specialist to use their season tick­

ets 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

medical records to document care provided for

particular services. Patient had mrely been sick

prior ro the accident, and Personal Physician's

Billing Clerk decides to JUSt copy Patient's entire

medical record and let the UM Nurse find what

she want's in the file.

Parents subsequently become co-guardians of

Patient's person and estate, and sue Driver and

Passenger for causing personal injury to Patient.

Parents' attorney writes both Hospital and

ursing Home for Patient's complete medical

records. With the request for records, attorney

encloses an authorization signed by both Parents

along with an affidavit that ParenlS are Patient's

next·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 15

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 cor­

ners 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 thera­

py, 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 unex­

pectedly 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 inves­

tig-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 recommenda­

tions to the Quality Assurance Comminee.

The TestOTICE 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 writ­

ten 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

is pleased to announce that

have joined the firm as associates

J.R. Carroll (U. ofA. Law '03)

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

u

Mark W. DossettCourtney P. GilbertTameron C. BishopEric R. GribbleBradley O. ShepherdCasey O. LawsonJ. R. CarrollTisha M. Bartlett

Patient or Driver. The statement regarding

Driver's srate of inroxication is PHI and

Hospital cannot disclose ir under (hese condi~

lions.

USES AND DISCLOSURES TO PERSONS

INVOLVED IN PATIENTS CARE

3. Which disclosures to family members were

improper under the Privacy RuJe?

a. Emergency Departlllent Physician's disclo-

of

The Law Firm

P.O. Box 168819 East Mountain StreetFayetteville. AR 72702

(479) 521-7600www.daviswrightlaw.colll

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

DAVIS, WRIGHT, CLARK, BUTT& CARITHERS, PLC

Sidney P. Davis. Jr.Tilden P. ("Chip") Wrighr IIIConstance G. ClarkWm. Jackson Burt IIKelly CarithersDon A. TaylorJohn G. TriceLaura J. Andress

Correct Answer: d. It is appropriJre for rhe

Emergency Department to disclose that Patient

was in surgery because Mother asked abour

Patient by name. It is also appropri:ue for a hos­

pital spokesperson to gIve the newspaper

reporter general information abom Paliem's

condition, such as the srarement in answer b.

lr is not appropriate, however, for Spokesperson

ro disclose any orher medical information about

.--------_.1.make a good faith attempt ro obrain an

acknowledgmenr. Insurance Company would

have been required to provide the Notice at

Patient's initial enrollmcnt into irs plan, but

would not have had to obtain an acknowledg­

ment.

Correcl Answer: b. In an emergency, rhe

covered entity muSt provide the Norice as soon

as practicable after emergency treatment.4 The

Ambulance Provider left a copy of the Norice ,---------------------------------------,

wirh rhe Emergcncy Department, and this is

permined by the Rules, if the Emergency

Departmcnt agrees to makc rhe Norice avail­

able to rhe patient. As an alternarive, rhe

Ambulance Provider could mail rhe Norice ro

Parienl's lasr known address. The Ambulance

Provider is not required to obrain an

acknowledgment if rhe encounrer is an cmer­gency.s

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·mails

irs Notice may include additional informa­

rion 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 pro-

vides 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·

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.

Vol. 38 No. 4/Fall 2003 The Arkansas Lawyer 17

sure of patient's health status to Parents. Personal epresematives are discussed below.

b. The police depanment's disclosure to Parents The pplice force is not a covered entity gov·

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 disclosuretransferred to Hospital. is nOt improper because the Privacy Rules do

c. Insurance Customer Service Manager's dis· nOt apply.

closure of claims information to Sister. NO AUTHOIUZATION FOR

d. None of the disclosures were improper under TREATMENT, PAYMENT, HEALTH CAREthe Privacy Rule. OPERATIONS

Overview of issues. A covered enriry may 4. Which of the following providers should

disclose to a family member, other relative, or a obtain a HIPAA-compliant authorization

dose personal friend of the patient, or any other before disclosing Patient's PHI in the fol.low~

person the patient idemifies, PH I that relates ing manner?

directly to that person's involvement with the 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 10 object to transfer Patient to another health care

the disclosure and does not objea.9 If the provider.

patiem is not present or lacks capacity to object b. Hospital and Nursing Home before disclos-

to the disclosure, the covered entity may disclose ing PH J to their respective atrorneys to

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

the exercise of professional judgment, the cov- entities.

ered elllity determines that it is in the patient's c. Hospital before disclosing PHI to Insurance

best interest to have this information disclosed. Company for preauthoril.ation and medical

Correct Answer: d. one of these disclo- necessity determinations, beC3l1se such dis-

sures is improper under Ihe Privacy Rule. closures do not fall within the definition of

Because Mother is furnishing Patient's billing "health care operations."

information, hospital may disclose payment d. None of the providers need authorizations to

information to Mother. Also, it is appropriate make these disclosures.

for Physician to disclose to Patient's parents the Overview of issues. A patient's authoriza-

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, made for treatment, payment, or health care

so that his parents can make an informed con- operations ("1'1'0").11 This is true, whether the

scm to further treatment and transfers. use or disclosure is for the covered entity's TPO

Customer Service Manager at Insurance or whether the covered entity is disclosing it to

Company also properly disclosed claims infor- another covered entity for 1'1'0. If the discla-

mation ro Sister, after verifying Sister's idemity sure is for another entity's health care opera~

and involvement in payment for Patient's care tions, however, disclosure is permined without a

and verifYing that Patient's MOlher, his personal patient's authorization onryifbodl entities had a

represenmtive, had no objections to the care. 1O relationship with the patient.

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

is not required for disclosures made for payment

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

of medical inFormation. 12 Because HIPAA does

not require a consent or authorization, Hospital

need nOt obtain a HIPAA.compliam authoriza­

tion. Rather, it may continue to use whatever

form of consent it had been using before April

14,2003. "Authorizations" are discussed below.

Neither Hospital nor Insurance Company

violated the Privacy Rules in the Hospiml's dis­

closure of medical records, and Insurance

Company's use of those records, to authorize

Patient's hospital admission or to review the

medical necessity of Patiem's continuing hospi­

tal stay. Such uses and disclosures are for pay­

ment purposes under the Privacy Rule, not for

health care operations. 13

Hospital and Nursing Home are permitted

to disclose Patient's PHI to their attorneys with~

out an Authorization because this disclosure falls

within the health care operations exception for

conducting or arranging for legal services. 14

MINIMUM ECESSARY5. Which of the following disclosures vio­

lates the minimum necessary rule?

a. Nursing Home's disclosures to Consultant,

because the PHI disclosed was not limited to

Ihe PHI of patient, the alleged subject of the

abuse.

1'1(1!V""I(l]ulll1g111VVI I \.pVlll'l1lVd I "Iwn \\ II Ill'''''

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

John E, MeAllister~ RE.SmmlltUy ofAcademic & Pt'ofessiomd Experience

Registered Professional Engineer in 3 stales.

9 years of experience as president of large dislributor specializing in all types of safetyequipmem, major emphasis on metal forming and stamping.11 years of experience as president of company involved in repair and rewinding of eleclricmOtors 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 71909-4613Phone: (501) 922-1709' Fax: (501) 922-41n...~... 1!IlI!~""'''

[8 TIle Arkansas la\\yer WWvV.arkbar.com

Arkansas Secretarv of StateC~MbI~

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ace e s sA,ka n s a s.0' g Isos

Vol. 38 No. 41Fatl 2003 n,e Arkansas Lawyer 19

I1-:

for Plaintiff and Defense Related Cases.

Property and Equipment Damage, Electrical Fires,

Electrical Accident Investigation and Analysis,

Contact Cases and Electrocu tions, Electrica I Inju ries,

another covered entiry, public official, or a pro­

fessional who is a member of the covered emiry's

workfor or a business associate and is asking

for records in order 10 provide professional serv­

ices. 17 However, a covered emiry may not

request, use or disclose an entire medical record,

excrpt when the emire medical record is specifi­

cally juslified as Ihe amoum reasonably neces­

sary 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 send­

ing 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 pro­

vided 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 min­

imum necessary rule does not apply. However,

the minimum necessary rule does govern disclo­

sures 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 disclo­

sures to Consultalll were for quality assurance

ESC, UL), Expert Witnessing

Paul D. Mixon, PhD., PE.Engineering Consultant

p.o. Box 3338State University, AR 72467

(870) 972-2088 (870) 972-3948 FAXomixon@navaio.astate.edu

ELECTRICAL ACCIDENTS

Safety Codes ( EC,

b. Disclosure by Personal Physician's office to

Insurance Company of Patient's entire med­

ical 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 mini­

mum 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 person­

al 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 neces­

sary 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

purposes (which full under health care opera~

rions) and rd:ucd only [0 the task she was con­

tracted to perform. The disclosures thus com­

plied with the minimum necessary rule.

ADEQUATE SAFEGUARDS6. Which of the following statements are

true?

I. UM urse and Medical Director did not vio­

late the Privacy Rules because they had a rea­

sonable 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 physicalsafeguard-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 IVc. II and IIId. 1and IV

Overview of issues. A covered emity must

have in place adequate administrative safeguards

(such as training and policies), physical safe­

guards (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 unin­

temional disclosure that would violate the

Privacy Rule. 19 A covered emiry also must take

reasonable steps to safeguard PH I to limit inci­

demaJ uses and disclosures made pursuant ro

an otherwise permissible use or disclosure.2o

As discussed above, a covered enriry must

determine the minimum :amoum and rypes of

PHI an employee neais 10 perform his or her

job duties and take steps 10 limit the employ­

ee's access to PHI accordingly.

Correct Answer: b. UM urse and Medical

Director should have ShUl lhe door ro the

Medical Direaor's office before discussing

Patient's PH I 10 prevem unintended disclo­

sures 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 UMDeparrmelll. HHS has emphasized that what

safeguards arc reasonable will vary from cov­

ered emiry to covered entity, depending on the

size of the emiry and the financial and admin­

istrative burden of implementing particular

20 The ArkJns"s L""yer www.arkbar.com

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

11 • Recognizing Excellence

12 • Board of Directors

2. Arkansas Bar Foundation

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, benefittingabout 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 renova­

tion 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

port its operations.

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

S25. The number of Sustaining Fellows is178. A drive to recruit new Fellows is

being planned in conjunction with the

fund-raising drive.

President's Report

Teresa Wineland,President, Arkansas Bar Foundation

Ann Dixon Pyle continued her invalu­

able 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 tal­

ents 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 skillsand dedication will ensure that the goals

we are setting to secure the future of theFoundation 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.

Annual Report 2003 • 3

Profile of theArkansas Bar Foundation

THE ARKANSAS BAR FOUNDATION

was established in 19S8 to support efforts

at improving the administration of justice.

The Arkansas Bar Foundation, which is

classified as a tax exempt organization

under Section 501 (c) (3) of the Internal

Revenue Code, is a charitable organization

with a mission to promote educational, lit­

erary, scientific and charitable purposes

which are more specifically described as

follows:

1 t To improve and facilitate the

administration of justice.

2 t To prornote legal study and

research, diffusion of knowledge of

the law and continuing education

of lawyers.

3 t To publish and distribute address­

es, reports, treatises and other liter­

ary 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 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 con­

ference room which is frequently used by

lawyers from around the state for deposi­

tions and meetings. The open lobby area

is a perfect site for receptions and larger

meetings.

The Arkansas Bar Foundation is gov­

erned by an eighteen member Board of

Directors. The Board is composed of

Fellows elected by the Foundation mem­

bership frorn each of the state bar districts

plus the Arkansas Bar Association

4. Arkansas Bar Foundation

President, the Immediate Past President of

the Foundation and the Chair of the Trust

Committee. The Officers of the

Foundation are the President, Vice

President, and Secretary-Treasurer, who are

elected by the Board for one-year terms.

Members of the Board are elected at the

annual Foundation membership meeting.

The seventeen-member Trust

Committee is composed of experienced

lawyers who serve six~year terms. Two are

appointed by each President and con­

firmed 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 operat­

ing account pays the cost of running the

Foundation.

Arkansas Bar Foundation400 West Markham

Little Rock, Arkansas 72201501,375.4606 800,609.5668

Foundation Funding

For fiscal year 2002-03, the Arkansas

Bar Foundation approved grants, scholar­

ships and program allotments of benefit

to the profession and the public.Scholarships and projects of the Arkansas

Bar Foundation are financed through

investment income from the trust fund

which has been built by contributions and

Fellow's pledges and is used solely for the

good works of the Foundation. This illus­tration reflects allocations for the 2002-03

year.

2%

29%

21%

37%

11%

Foundation Merit Scholarships andFoundation Professorships

Endowed Scholarships

Special Projects Grants

.---''<------ Law-Related Education Programs

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

"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

schools. In addition to the many

endowed named law school scholarships

and the Arkansas Bar Foundation Merit

Scholarships awarded to deserving stu­

dents 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-

cant contributions to serving the Bench

and Bar of Arkansas.

ARKANSAS BAR FOUNDATION

PROFESSORS OF LAW

Professor W. Dent Gitchel,

UALR William H. Bowen School of Law

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 • 5

ScholarshipsEach 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 facultyof 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 thetotal amount of $7,500 and have produced fine lawyers who otherwise may not have been able to afford the costsof law school without the Foundation's assistance. Scholarship recipients were honored at the Arkansas BarFoundation Mid-Year Scholarship Dinner which was held at The Little Rock Club on January 31, 2003.

Recipient

Ruthie HaganSeth HainesAlex GuynnAlane Dale

Nick ArnoldKris Knox

Jamie Fowler

Kendra BufordJonathan Macke

Mariana CollinsAlison LeeBen Poole

Emily LackeyMaurice Rigsby

Brad LovanJessica Middleton

Judy BartonErin Cullum

Raney EnglishConner Eldridge

Tamla JohnsonRebekah Kennedy

Jeremy GreenSean Brister

Mary Rice

Steven Lewis

Conner Eldridge

University of Arkansas at Fayetteville School of Law 2002-03 ScholarshipsScholarship AwardedArkansas 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)Joe C. BarrettBogle-SharpR. A. Eilbott, Jr.Vincent W. Foster, Jr.Friday, Eldredge & ClarkEdward LesterAustin McCaskillHorace and James McKenzie*Judge John E. MillerJudge William OvertonCol. C. E. RansickRather, Beyer & HarperThe Shackleford ScholarshipJustice George Rose SmithSmith, Stroud, McClerkin Dunn & Nutter (Dunn, Nutter & Morgan, LLP)M. Jeff Starling>David SolomonJudge Thomas Clark TrimbleC. R. WarnerHarry P. WarnerBernard & Bud WhetstoneWilson & Associates Ethics ScholarJudge Henry WoodsArkansas Bar Foundation(Merit Scholarship)

UALR William H. Bowen School of Law 2002-03 ScholarshipsRecipient

John YoungStephanie McLemore

Joseph SweereStephanie McLemore

Mindy LovedayJason Kelly

Scarlett BoyceTrella SparksBrian Carter

Tasha SossamonSarah Greenwood

Danna YoungSara WilliamsDanna Young

Joseph SweereTrella Sparks

Christian BoeslBrian Carter

Jennifer OlsonLeslie Ligon

Brittany JeffersonLori Burrows

Brandon LacyHarold Wayne Young

Regina McCreaCarmen Mosley

Brandon LacyApril Minor

Regina McCrea

T.K. Smith

Emily Abbott

Margaret JohnstonStaci Carson

Ray PierceMatthew WellsJennifer OlsonMindy Loveday

E. Charles Eichenbaum

Scholarship AwardedArkansas 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-SharpJohn H. and Ruth H. Brunson

R A. Eilbott, Jr.Friday, Eldredge & ClarkJ. Smith HenleyJudge John A. FoglemanJames H. Larrison, Jr.Justice J. Frank HoltEdward LesterBrian MacMillanCol. C. E. RansickRather, Beyer & HarperRose Law FirmU. M. RoseC. R. WarnerHarry P. WarnerBernard & Bud WhetstoneRoxanne Tomhave WilsonWilson & Associates Ethics ScholarJudge Henry WoodsArkansas Bar Foundation (Merit Scholarship)

> Will be awarded in the spring

William A Eldredge Award Nlkl Cung

Special Projects Grants

The Arkansas Bar Foundation provided

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

projects represents the Foundation's com­

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

Arkansas Bar Association Mock Trial Committee

Mock Trial State and National Competition

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

Arkansas Bar Association

"A Sacred Trust," 2003 Annual Meeting program

Arkansas Supreme Court Historical Society

Arkansas Supreme Court and the Civil War Exhibit

Arkansas Attorney General's Office

"Smart Choices for Better Chances" videotape

The Department of Arkansas HeritageDeclaration of Independence Exhibit/Road Trip at theOld State House Museum

$ 3,443

$ 6,500

$ 4,000

$12,500

$ 2,000

$ 5,000

$ 3,000

The Arkansas Bar Foundation is pleased to announce the establishment of two newscholarship funds during the 2002-03 year:

The Sebastian County Bar Association Scholarship

and

The Ernest Lawrence Scholarship

Annual Report 2003 • 7

FELLOWS OF THE ARKANSAS BAR FOUNDATIONOutstanding 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 FoundationSoard. The current financial requirement to become a Fellow is a pledge of $1,500, which is payableover 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 ofthe Foundation as of April 30, 2003. Those Fellows whose names are highlighted in bold are recognizedas newly designated Fellows for the 2002-03 year.

SUSTAINING FELLOWSWhile investment income from the Trust Fund principal funds the charitable and educational purpos­

es 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 ofoperating funds is through Sustaining Fellowships. Any Fellow of the Foundation who contributes $75annually 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. AcchioneRichard B. AdkissonCharles Greg AlagoodEdwin B. Alderson, Jr.H. William AllenR. Ben AllenGuy Amsler, Jr.E. M. AndersonOverton S. AndersonPhilip S. AndersonR. Keilh ArmanMorris S. ArnoldW.H. "Dub" ArnoldJ'" L. Ask,w, IIIRichard B. AtkinsonVirginia AtkinsonE. leRoy AutreyLawrence H. Averill, Jr.Donald H. BaconCarlton BaileyFrank H. BaileyNancy H. BaileyKenneth B. BairnCharles \Y/. BakerJames P. Baker, Jr.Roy L Baker, Jr.E.J. BallWilklm K. BallDon K. BarnesRalph C. BarnhartW. ChrislOphcr BarrierBen T. BarrySherry I~ BanleyDavid F. BanonRoben BanonSamuel R. BaxrerR.T. B<ard, IIIJohn R. bierMike BeebeJoe D. BdlPaul B. Benham. IIIJoe BensonSanford L. &shear, Jr.Edgar E. IkthdlSam . BirdEric W. BishopH. David BlairJames B. BlairTim BoePaul R. BossonTed BoswellWilliam H. BowenEdward BorceWayne BoyceComer Boren, Jr.

8. Arkansas Bar Foundation

Thomas M. BrdmhallEllen B. BrantleyWilliam C. BridgfonhBill W BristowEdward W Brockman, Jr.Charles A. BrownGerald BrownRobert L. BrownThomas E. BrownC. Bramley BuckC. Douglas Buford. Jr.Tom A. BufordDale L. BumpersDan M. BurgeLarry W. BurksKevin R. BurnsRichard C. BUller, Jr.William Jackson BUlt IIJames A. BultryF. Wilson Bynum, Jr.John R. ByrdRichard J. ByrneRob<n D. C"b<John C. Calhoun, Jr.Worth Camp, Jr.George E. CampbellClaude Carpenter, Jr.Thomas M. CarpenterPhillip CarrollDaniel R. CanerJean T. Caner

. PaulaJ. C=y

. Roben M. Cearley, Jr.Jack S. Cherry, Jr.Sandra Wilson CherryLawrence E. Chisenhall, Jr.B;Il S. Clark\X!illiam M. Clark, Jr.W. Dane ClayH. Murray ClaycombHillary Rodharn ClintonRalph M. Cloar, Jr.Eldon F. CoffmanCharles T. ColemanRobert C. ComplonWaller K. ComptonBarry E. CoplinBen CoreNate CoullerJ. Scon CovinglOnKenneth W CowanJames O. CoxKevin A. CrassMichael H. CrawfordJames E. Crouch

· James D. CypertThomas A. DailyRoy E. DanuserJim Darr, Jr.John A. Davis, IIISidney I~ Davis, Jr.Roben T. DawsonBarry DeaconJ.e. DeaconBeth DeereGerald L. DelungRebecca J. DenisonRobert L. Depper, Jr.J'y W. Dickey, Jr.\'V.G. Dinning, Jr.Philip E. DixonRoben E. DodsonRobert I~ DoughertyDarrell D. Do\'erJames F. DowdenTed N. DmkeWinslow Drummond'Iimolhy O. DudleyPhillip J. DuncanJames M. DunnWinford L. DunnJames Tresler DykeB. Michael EasleyJohn C. EcholsCharles H. EddyDOll A. EilbotlG. Thomas EiseleByron M. Eiseman, Jr.Don R. Ellion. Jr.

· George D. Ellis· Jeffrey Ellis· John R. Elrod

W.W. Elrod, 11William H. EnfieldStephen EngstromLewis E. EpIc)'. Jr.Roben R. EstesGary L. EubanksAudrey R. EvansMike EverenLindsey J. FairleyPhillip B. FarrisJackson Farrow, Jr.William Lee FergusJ. Michael FitzhughVietor A. Fleming

· John A. Fogleman· Julian B. Fogleman

John F. Fomer, Jr.limothy Davis Fox

Charles Frierson, IIIRob<n F. FussellW. Dale GarrenM. Morrell GarhrightKatherine e. GayPamela B. GibsonSam E. GibsonManin G. Gilbert

· John P. GillMarion S. GillC. Joseph Giroir, Jr.W Dent GilChelMorwn GitclmanRoger A. GlasgowDavid M. GloverCharles S. Goldb<rgerCharles W. Goldner, Jr.Ray A. GoodwinNaThan G. GordonAlben Craves, Jr.John R. GravesKarhlyn GravesJud;th H. GmyJ. W. Grern, Jr.John e. GreggRichard E. GriffinRonald L. GriggsMark W. GrobmyerWayne GruberMichael E. HaleM;las H. Hale, 111John T. Haley, Jr.O. Wendell H,lI, Jr.Don F. HamiltonDonis B. HamilwnHerman L. Hamilwn, Jr.Fr.mk S. HamlinSwan W. HankinsJohn T. HardinDavid M. HargisJolm N. HarkeyDavid K. HarpSearcy W. Harrell, Jr.Eugene S. HarrisJames E. HarrisRon D. HarrisonS. Reid Harrod, Jr.

• John T. Haskins· Richard Hatfield

William D. HaughtClaude S. Hawkins. Jr.M. Steele HaysJimm L. HendrenDonald H. HenryRoben \YI. Hem)'

E. H. HerrodSam HilburnE. Ken! HirschWilliam H. HodgcD"id A. HodgesHenry HodgesIUneasler Hodges, Jr.Curtis E. Hogut'Cyril HollingswonhDon HollingsworthBill R. Hollo.,yM.Jo< Holmes

· Jack W. Hoh. Jr.• Robtn M. Honea

Grogory M. Hopkin.• Jr:nniffrr M. Horan

Marthew HoranRobert E. HornbergerPhillip D. HoUiDorolhy Y. HOMedEJ. H"",II. Jr.D. Michael Hucbb.ar, Sr.Don R. HuffmanAnnabelle Climon ImberIUndall W I.hmaelHermann h'csterDonald T. Jack, Jr.John H. JacksonIUndolph C. JacksonShw)' JacksonLton N. JamisonAlston Jennings, Jr.AlslOn JenningsBradley D. J<ssonJohn M. JewellW. Horace JewellGlenn W. JOIlCS, 1r.Louis B. Jones, Jr.M. Samuel Jones, IIIRobert L.Janes, Jr.Rohen L. Jones, IIIW Wilson JonesJim L. JulianPhilip 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. KingHarold L. KingJohn S. KiuermanPna G. KumptH. &ker KurrusSunl')' R. l.2ngleyDavid . ~rSam l...astr

, John T l.2vey• Ike Allen uYt'S, Jr.

Ldand F. LtathermanCharies R. LtdbetlerThonus D. La:fbeuerR,ob(n B I...tAarMarklum UsIC'!

Alice F. LighdeSrark LigonGary E LilesRuth LindS<)'Danielle LimkerW. Kirhy LockhanFloyd J. LoftonEdwin L Lowther, Jr.Patty W. LuekenJama M. LuffmanDiant' S. MackeyEdward S. MaddoxPhil MalcomHoward L. ManinRichard L Martin

William A. MartinMichael H. MashburnTmy L. MalhewsCharles D. Matlh~David R. Malmev.'SSlephen A. MarlhewsRonald A. MayS. Huhen Mal'es, Jr.Richard L. MaY'Rohin L. MaY'Eugene J. MazUllliHall McAdams, IIIAusrin McCaskillJames E. McCJain, JI.

Hal'''' C. McCi<rkinSidney H. McCollumEd W McCorkicBohby McDanielLucin<b McDanielHarl)' E. McDermolt, Jr.

· James A. Mc1.2ny, IIIJama Bruce McMalhPhillip H. McM..hSidn,), S. McMathToney D. McMillanIkn C. McMinnD. Malcolm MeN,;r, J r.

, Jack A. MeNulryD. L. MclUcMargaret B. MeadsRuss M«ksDavid F. MenzH. Maurice MilchellMichael W MitchellMark A. MollSand" B. MollEd.,rd O. Moody

, James M. MoodyCharles Mooney, Sr.

· Dew')' Moo,., Jr.• Harry Truman Moore

Jama L. Moore, IIIJames W MooreJohn B. Moo,., Jr.Richard N. Moot(~, Jr.Charles A. MorganStcphen E. Morl')'Kennelh R. MourtonRosalind M. MoustrWm. Kirby MoustrLtt J. MuldrllWWaher A. MurrayRichasd S. Mus<Ronald G. Naramorrally N<a1E. Sheffield '<IsonCharles R. NesrrudDavid NewbernGeorge H. NiblockRaymond L iblockWj'Ck Ni.bet, Jr.R. Gary NutlerMike A. O'BrienBohby Ltt OdomConrad T. OdomRichard P. OsborneThomas L. OvcrhryCharles C. OwcnWilliam LOwenChris L PalmerMichael O. ParkerNicholas H. PanonWilliam L Pauon, Jr.Richard L. P«IEdward M. PenickSamuel A. PerroniDonna C. PenusE. Lamar PellUsNorwood PhillipsJohn M. PickertGeorge E. Pike, Jr.

John M. PiumanCharles E. PlunkwOdell PollardDavid M. PowtllDonald E. P"",allctWilliam I. PrewertDavid H. Pr),orThomas B. PryorDonald C. PullcnSIC"en W. QuattlebaumJohn W RainesMichael R. RainwJlt'rLouis L Ramsay, Jr.Richard L. IUmsayC.E. RansickBrian H. R.l.tdiffGordon S. lU,h", Jr.

, J. Thomas IUr· Stephen M. Rasoner· David Rees

Richard A. ReidJames R. Rhodes, IIIIXn E. Rice

• Elton A. RiC'·es. IIIRichard W RoachellAnd"" L. RoarJohn B. RobbinsMarl< RohemSusanne RobensThomas E. RobertSOnH. Clay RobinsonSpencer F. RobinsonJudith RogersCharles B. Roscopf

• Charles D. Roscopf• Louis Rosen

Jeff M. RosenzweigRobert D. RossRobert R. RossBeverly A. RowlenE1sijane T. RoyKent J. RubensHerhen C. Rulc, 111Donald S. RyanJ.E. SandcrsDaniel K. Schiem~rEug~ne L SchiemerDon M. SehnippcrIsaac A. ScOIt, Jr.Mary Davies ScOlt

Frank B. SewallDennis L ShackJefordJohn M. Shackleford, Jr.John K. Shamburger

· Stephcn M. Sharum· J. L. Shaver, Jr.

J. Michael ShawKennelh R. She.minWilliam F. ShennanSeo'ry ShivelyRoben ShulrsSIC"en T. ShultsHarold H. Simpson, II

· James Marlon Simpson, Jr.Jack SimsTed C. SkokosRodney E. SlacerHo.,rd L. SlinbrdIkd A. Smi,hDonald H. SmithDouglas O. Smi,h, Jr.Laura H, SmithlUy S. Smith, Jr.Rohen D. Smi'h,IIIFrank Snellgrove, Jr.David SolomonJama V. Spencer, III

· James D. SprorlGale B, StewartJean D. SlockburgerWilliam M. SlOcks

, Thomas S. StOneO.H. SlOrc)',1I1

. Thomas S. Sw:runanJos<ph A. Snodc

. John F. Slroud, Jr.Paul SullinsWilliam H. SutlonlimOlhy R. TarvinRex M. TenyWilliam L. TerryLet Thalheime:rMarvin D. ThaxtonHoyt ThollUSRoben F. ThompsonRay ThorRlonDanny ThrailkillThomas P. ThrashJohn R. TIsdalcWin A. TnffordRoben D. TrammellN. Wall. TrimbleEdgar J. TylerFml S. UrseryD.wid 8. VandergriffA. Glenn VasserRoben C. VitlilOWEddie H. Walker, Jr.WJ. WalkerJames R. WallaceLarry C. WallaceG. Chris Wah hall

• John J. WatkinsFrank L. Walson, Jr.John Dewey Warson

• Timolhy F. Walson, Sr.James E. WestBud B. WhetstoneFrank B. Whilh<ckNorman WilkinsonChris E. WilliamsRichard A. WilliamsRobert H. WilliamsW Jack Williams, Jr.Jennifer Wilson-HarveyRalph E. WilsonRoben M. Wilson, Jr.William R. Wilson, Jr.Russell B. WinburnTeresa M. WinelandCarolyn B. WilherspoonTom D. WomackJo< D. WoodwardRichard H. WoononJacqueline S. Wrighl

, Rohen R. Wrio/tt, 111· Susan WebberWrighl

Twy E W}~nc

W Kelvin WyrickCary E. YoungDamon YoungH. David YoungPaul B. YoungRoben E. Young

Annual Report 2003 t 9

Donors

The Arkansas Bar Foundation acknowl­edges with grateful appreciation the

receipt of memorial gifts, scholarship con­

tributions. honorariums and other dona­

tions to the Foundation during the 2002-

W. Christopher BarrierSteve Bauman

Beaver Water District

Comer Boyett, Jr.

Max and Judge Ellen Brantley

Mr. and Mrs. William Jackson Butt, II

Leah Caradine

Randy Coleman

Cathi ComptonCross County Bar Association

Mr. and Mrs. Jack C. Deacon

Mr. and Mrs. Winslow Drummond

Justice and Mrs. Robert H. Dudley

George D. Ellis

Stephen EngstromJustice 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, PLLCDon 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

10 ~ Arkansas Bar Foundation

03 year. This list represents gifts, not

including pledge and Sustaining Fellow

payments, received from July 1, 2002

through April 30, 2003. We thank you for

your support.

Don and Rose Pullen

David and Karen Baim Reagler

Rebsamen Insurance

Charles B. Roscopf

Charles D. Roscopf

Roscopf & Roscopf. PA

Dr. and Mrs. Joseph Rosenzweig

Judge Elsijane 1. Roy

Sebastian County Bar Association

Mr. and Mrs. David Solomon

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

Recognizing Excellence

ZOO3 Annual AwardsThese 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 BumpersFor 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. BrillRecognizes sustained excellence through integrity, character and leadership to the pro­

fession 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 AssociationSebastian County Bar AssociationSt. 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 • 11

2002-03 BOARD OF DIRECTORS

OfficersPresident Teresa M. Wineland EI DoradoVice President Ronald D. Harrison Fort SmithSecretary- Treasurer Sherry P. Bartley Little Rock

South & East Bar District2003 Lucinda McDaniel Jonesboro2003 Teresa M. Wineland EI Dorado2004 Michael H. Crawford Hot Springs2004 Stanley R. Langley Jonesboro2004 Wm. Kirby Mouser Pine Bluff200S S. Reid Harrod, Jr. Hamburg

Northwest Bar District2003 David B. Vandergriff Fort Smith2003 Ronald D. Harrison Fort Smith2004 Katherine C. Gay Fayetteville200S Joe Benson Fayetteville200S Randolph C. Jackson Fort Smith

Central Bar District2003 Tim Boe Little Rock2004 Steven T. Shults Little Rock2005 Sherry P. Bartley Little Rock2005 Daniel R. Carter Little Rock

Ex-OfficioThomas L. Overbey, Immediate Past President, Arkansas Bar FoundationA. Glenn Vasser, Chair, Trust CommitteeH. Murray Claycomb, President, Arkansas Bar Association

Arkansas Bar Foundation Committee ChairsTrust Investment Audit

A. Glenn Vasser John Robert Graves David Menz

Special ProjectsJohn F. Stroud, Jr.

BuildingRuss Meeks

AwardsTeresa Wineland

Writing AwardsTimothy Watson, Sr.

Selection of FellowsBrian Ratcliff

Foundation StaffAnn Dixon Pyle, Executive DirectorJoyce Bobbitt, Administrative Assistant

.--- J-

-

1

,

safcguards. 21 In any even[, UM Manager and

Medical Director must take reasonable steps to

profect their discussions concerning PH I from

others who do nor need to know the informa­

tion to do their job.

Credcntialing Specialist was improperly

trained if the training did nOt emphasize that

employees may not ItU PH[ in any manner

inconsistent with their job functions Of obtlli"PHI unrelated ro their job functions. Coveredentities should emphasize that this includes PHIlearned abom friends or even fillnily members.

Credcnrialing Specialist violated [he Privacy

Rules when he sroppcd and listened to hearmore information about Patient, and when he

used (and arguably indirectly disclosed) PH I roobtain information from his mher fraternity

buddy and call Parient's parenrs. Credentialing

Specialist may have had the besr ofimentions in

doing this, and probably believes that no harm

could come from his acrions. His actions never­

theless violate the Privacy Rule, and if Parents

should learn that the person using their foorball

tickets obrained and used information about

their son improperly disclosed to him wirhin

Insurance Company, Insurance Company may

have to answer to a significant Privacy Rule vio­

lation.

AUTHORIZATIONS7. Which of the following d.isclosurcs would

be improper without a HIPAA compliant

aulhorization from Patient or his Personal

Representative?

a. Oral disclosures by urse's Aide to Parents'

anorney, if Parenrs are given the opportunity

to object and do nor.

h. Disclosure by Hospiral or Nursing Home of

P:Hienr's medical records to Driver's anorney

who subpoenaed the records, if Driver pro­

vides satisfactory assurances that Parents

know about the subpoena and do not object

to release of the records.

c. A disclosure by a surveyor to the person

claiming to be Parenrs' anorney.

d. None of the above disclosures would require

a HIPAA-compliant authorization.

Overview of issues. A covered entity may

nor usc or disclose PHI without a HIPAA-com­

pliant ("valid") authorization, unless an excep­

tion applies.22 There arc many exceptions, hur

the more common ones include the following:

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

for public health acrivities, for health oversight

activities, for law enforcemenr purposes, and for

judicial and administrative proceedings. Some

of the exceptions have additional requirements,

however, and rhe Rule should be consulted.

The Privacy Rules define rhe coment of the

authorization, and rhe Rules must be consulted

for the core terms. 23 An authorizarion is not

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

passed or rhe expiration evenr has occurred; (b)

the authorization form has nor been completely

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

the covered entity knows that the patient has

revoked the authorization; (d) the authori7.ation

is an impermissible compound or conditional

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

covered entity knows that a material representa­

tion in rhe authorization is false.

Correct Answer: a. Parents' anomey IllUSt

present a valid HIPAA-complianr aurhoriz,1tion

that includes the authority to obtain oral disclo­

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

her. There is no evidence that attorney is direct­

ly involved in Patient's care or payment for his

care, so an oral agreemem by Parents would not

be sufficient. Alternatively, he could subpoena

Nurse for a deposition in the lawsuit. However,

it is always easier to obtain an alll'horization

from the persall you represem rather than com­

plying with the subpoena process, and the min­

imum necessary rule does nOt apply to authori­

zations. Requirements for subpoenas arc dis­

cussed below. Nurse's Aide drew from her

Privacy Rule training24 and correctly referred

the person claiming to be Parents' attorney to

Nursing Home's Privacy Officer,2S who call

evaluate the situation and the authorization the

person claims to have on file.

Without ready access to an authoriz.uion by

the adverse party in the lawsuit, Driver's attor­

ney subpoenaed Patient's medical records, and

this quesrion assumes he also has provided saris­

factory assurances that Parents know about the

subpoena and do not object. As discussed

below, under rhese circumstances no authoriza­

rion is required.

The Survey Agency's surveyor would violate

other laws if she were to share her survey notes

with the person alleging to be Parents' Attorney.

However, the disclosure would not violate the

Privacy Rules because the Survey Agency, in its

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

ered entity" and, therefore, is llOt govemed by

the Privacy Rules.

PERSONAL REPRESENTATIVES8. Which of the following is sufficient evi­

dence that Parents are the Personal Rep­

resentatives of Patient, as defined by Arkansas

law.

:l. The affidavit attesting that Parents are

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

the covered entity verifies each Parent's iden­

rity.

b. A power of attorney giving Parenrs power to

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

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

durable power of attorney.

c. Letters of guardianship.

d. Both band c.

Overview of issues. When a patient's

authorization is required to use or disclose PHI,

only the patient or the patient's "personal repre­

sentarive" may authorize the use or disclosure.

A "personal representative" stands in the shoes

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

"personal representative," HIPAA looks to state

law to determine whether a person has authori­

ty to act on behalf of an adult, emancipated

minor, or deceased person. In Arkansas, attor­

neys-in-fact operating under a power ofattorney

for health care; health care proxies; guardians of

the person; and administrators or executors of a

deceased person's estate arc personal representa­

tives for the purposes of the Privacy Rules. A

covered emity may elecr nor to treat a person as

a personal representative if to do so could

endanger the patient; or if the covered entity

believes thar rhe parient has been or may be sub­

jected ro domestic violence, abuse, or neglect by

that person. To disclose Patient's PHI to

Parems' AttOrney, Hospital and Nursing Home

must ensure that Anorney sem a valid authori­

zation signed by Patient's personal representa­

tlves. In addition. they must ensure, by docu­

mentaryevidence, thar Parents arc Patient's per­

sonal represent:uives.

Correct Answer: d. Assuming the authori­

zation signed by both parems is otherwise valid,

the Hospiral or Nursing Home would still vio­

late the Privacy Rules if either disclosed Patient's

PHI in reliance on the affidavir declaring

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

for Nursing Home and Hospital should contact

Parems' Attorney, and ask for a copy of the

Letters of Guardianship or a durable power of

attorney granting Parents the authority to aCt on

Patient's behalf in requesting the records. Under

Arkansas law, to remain valid after the principal

becomes incapacitated, a power of anorney

must state specifically that the grant of powers

will not be affected by subsequent disability or

incapacity of the principaJ.27 After receiving

such evidence, Hospital and Nursing Home

may disclose the PH I to Parents' attorney, and

may charge a reasonable, cost~based fee, includ­

ing postage, for copying the records. 28

VERJFICATION OF IDE TITY OFPERSON REQUESTING PHI

9. Which of the following statements are

true?

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

tation that the person claiming to be

Parents'Attorney is telling the truth, because

attorneys are professionals and Nursing

-

Vol. 38 No. 4/Fall 2003 n,e Arkansas lawyer 21

II

Home may reasonably rely on their rcprcscn- card, sjJl; as a driver's license. If Clerk would

rations. have vented the identity of the person ro whom

..._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'dover a copy of Patient's records, sheclaiming [0 be a surveyor into the facility would not have made the mistake of giving

without presentation of some written idenri- them to Ex-husband's Attorney.

ficacion of the person's authority. On (he other hand, Customer Service

c. Insurance Company's Customer Service Manager at Insurance Company properly veri-

Manager cannot rely on an oral represenra- fled the identity of Patient's Sister before dis~

tion from MOlher that Sister is who she says cussing claims information by asking for her dri-

she is. vcr's license and calling Patient's Mother to ver-

d. Both a and c. ify Sister's relationship to Patient and verifying

Overview of issues. Before disclosing PH I that Mother, whom Customer Servicc Manager

to a person not known to the covered entity, the knew to be Patient's personal representative,

Privacy Rules require the covered entity to veri- had no objections to the disclosure. Customer

fy the identity of the recipienr. 29 In addition, Service Manager knew Mother's voice, bur also

the covered entity is required to obtain oral or properly verified her identity by asking for

written representations when representative Patient's account number and Social Security

capacity is a condicion of disclosure. Such rep- umber.

resentations may be subpoenas, warrants, SUBPOENAS AND OTH ER LEGALorders, or other legal process; identification PROCESS

badges or letterhead idenrifying public officials; 10. True or False: Hospital and Nursing

or oral or written statementS of authority by Home must disclose Patient's records in

public officials. response to the subpoena issued by Driver's

Correct Answer: b. The Nursing Home attorney.

mUSt verify the identity of the surveyors in a a. True. because the law requires that Hospital

manner that verifies their representation of the and Nursing Home comply with a valid sub-

Survey Agency. At the very least, the Nursing poena.

Home should verify by examining the surveyor's b. False, because HIPAA preempts state laws

photo 10 badge and may also ask for a business regarding subpoenas.

card. c. False, if Driver's attorney did nor provide a

The Nursing Home also is obligated to veri- qualified protective order or satisfactory

fy the identity of persons claiming to he Parents' assurances with the subpoena.

Attorney when that person comes to the Home, d. False, because an authorization is always

and should not rely on an oral representation needed in order to disclose patiem records for

alone. While there is no single way that this purposes other than treatment, payment or

may be done, the Nursing Home may ask the health care operations.

person to produce a copy of the Authorization Overview of issues. Generally, when PHI is

and Letters of Guardianship, and also may ask requested in a legal proceeding, the Privacy

for a business card or to examine a photo 10 Rules allow a covered emity to release the infor-

John V. Phelps

Richard LusbyD. Chris Gardner

Dustin H. Jones

• (870) 932-0900

C. David Landis

Lucinda McDanielMark A. MayfieldPamela A. Haun

Jonesboro,Askansas

AITORNEYS AT LAW-THE FIRM ANNOUNCES THAT

J. NICHOLAS LIVERSand

RANEY ENGLISH COLEMANHAVE COMMENCED PRACflCE AS

MEMBERS OF THE FIRM

Cenlury Center •

Tom D. Womack

Paul D. McNeill

Jeffrey W. PuryearJ. Rogers McNeil

marion only under one of the following circum­

stances: (I) pursuam [0 a coun or administra­

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

subpoena and HIPAA-required "satisfactory

assurances" from the requesting parry; (3) pur­

suant to a HI PAA-compliant authorization; or

(4) under the protections of a qualified protec­

tive 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

(J written stflfement and accompanying dowmm­

ration 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 litiga­

tion or proceeding in which the PHI is request­

ed 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 objec­

tions were filed or all objections filed have been

resolved by the tribunal, and the disclosures

being sought are consistent with this resolu­

tion. 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 pro­

tective order has been presented to the court or

administrative tribunal with jurisdiction over

the dispute}3

Correct Answer: c. Without an authoriza­

tion, Driver's attorney must either provide satis­

1"'"------------------------------------...., factory assurances or a qualified protectiveWOMACK, LANDIS, PHELPS, order with his subpoena in ordec [0 obrain

McNEILL & McDANIEL Patient's medical records. Additionally,

A Professional Associalion because HIPAA requires that covered entities

disclose only the minimum amount of PH I

necessary to fulfill the purpose of the disclo­

sure, Hospital and Nursing Facility should

have supplied Driver's attorney with only

those records relating to the car accident.

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

Patient's personal representative in order to

obtain the entire record. There are no limits

on the information that can be authorized for

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

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22 The Arkansas Lawyer www.arltbar.com

;

•

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 subpoe­

na 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

Privacy Rules ro keep the records confiden­

tial.

Overview of issues. H HS has aurhoriry to

regulate those who initially create and disclose

health information, bur it has no authority to

regulate mOSt other persons or entities who

receive that information from a covered entiry.

It determined that privacy protection was best

served by requiring covered entities to obtain

certain assurances from entities requestjng PHI

from them. Thus, the Privacy Rules indirectly

govern certain third panies through a require­

men! that the covered entities enter into con­

traCtS with these third party "business associates"

binding them to numerous contractual restric­

tions that muSt be imposed under the regula­

tions.

A5 explained below, a business associate is a

person other than a member of the covered emi­

ry's workforce who performs or assists in the per­

formance of a function or activiry involving the

use or disclosure of PHI. A5 is clear from the

definition, anorneys may be business associates

if they are providing services to an entiry covered

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 prohibit­

ed by the business associate agreement from

subsequently disclosing medical records.

However, those attorneys who are not represent­

ing a covered entity under HIPAA are not busi­

ness associates, and therefore, are under no obli­

gation nOt to disclose medical records they

obtain in litigation unless they are prohibited

from doing so by a COUrt order.

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

attorney is nor representing a covered entity, the

anorney is nOt bound by the testrictions of a

Business Associate Agreement. Therefore,

Driver's attorney was not required by the Privacy

Rules to maintain the confidentialiry 0 Patient's

medical records.

PATIENT RIGHTS

]2. Which of the following statements are

true under the Privacy Rules and other appli­

cable law?

a. Mother's request for access to Patient's med­

ical 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.

c. Sister's request for access should be rejected,

unless Mother provides an authorization.

d. Both a and c.

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

Some of these rights are not absolute, and the

covered entity may deny the right, under certain

circumstances, if reasonable to do so. A covered

entity should, and in some cases must, docu­

ment both requests and responses to patients

who are exercising their rights. A nursing home

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

deadline is not preempted by the Privacy Rule,

because it provides quicker access by a person or

personal representative to requested records. 41

There is no similar shorter deadline for health

plans in Arkansas, so health plans may take the

full 30 days to produce records located on site

and 60 days to produce records off site, with

some opporruniry for a single 30-day exten­

sion.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

and holidays.

On the other hand, Sisrer was not entitled to

access aU of Patient's records without an author­

ization. She is nOt Patient's personal representa­

tive and Insurance Company could disclose PHI

to her only to the extent minimally necessary for

Sisrer's investigation of the Hospital bill.

Customer Service Manager should have told

Sister to provide the access request form to

Mother to fill out. A covered emity may require

that access requests for PHI be in writing.43

Customer Service Manager also correctly told

Sister rhar rhe requcst could take up to 30 days.Even with a val id reQuest for access, an indi~

vidual probably is not entitled to "every piece of

paper" about the individual maintained by a

covered emity. The Privacy Rules limit an indi~

vidual's access to his own PH I that is maintained

in a "designated records set," defined by the

Rules as those records used in whole or in pan

to make decisions about the individuaL44

Under the definition, a designated records set

specifically includes medical and billing records

maintained by a health care provider and enroll­

ment, payment, c1:.ims :.djudic:.tion and case or

medical management files maintained by a

health plan. However, a covered entity would

not have to provide an individual access under

the Privacy Rules to 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

13. Survey Agency may enter Nursing Home

premises and review PHI:

a. Only pursuant to a valid authorization

signed by a complainant;

b. Because disclosures to the Survey Agency are

required by law;

c. Because the Survey Agency is a health over­

sight agency with responsibility to monitor

Nursing Home compliance with law;

d. Both band c.

Overview of issues. 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 govern­

menr 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 inves­

tigation of Nursing Home's report of the allega~

tion of neglect, tbe Privacy Rule permits the

Nursing Home to disclose all Patient's records

and investigation reportS involving Patient's

nurse to the surveyors, because the Survey

Agency is conducting a health oversight func­

tion. Generally, the minimum necessary ruJe

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-

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Vol. 38 No. 4/Fall 2003 TI,e Arkansas lawyer 23

EXAMINATION CONSULTANTS

Retired from the Arkansas State Crime Laboratory

1765 John Bryant Dr. - Conway, AR 72034 (501)450-6361

Handwriting Experts

court.

Overview of issues. In addition to dcsignal*

ing a comact person or office for receiving

complaints,51 covered entities are required to

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

Nurse's employee records to Ex-husband's

attorney:

a. Will violate the Ptivacy Rules unless Nursing

Home obtains Nurse's authori7.3tion.

b. Will nor violate the Privacy Rules because

disclosures relaring to employment maners

are "health care opef3tions.·'

c. \Vill nOt violate the Privacy Rules because

employment records conraining medical

informarion arc expressly excluded from the

definition of PHI.

d. Will not violate the Privacy Rules because

employment records containing medical

information are expressly excluded from

authorization requirements.

Overview of issues. Employee healrh infor­

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

erned by the Privacy Rules in their uses and dis­

closures made in the role of employer, although

other laws may limit disclosures. On the other

hand, the Rules do apply to their uses and dis­

closures made in their roles as a covered enri­

ty-for example, if a hospital provided medical

care to a member of its workforce.

Correct Answer: Co The Nursing Home will

not violate HIPAA if it discloses Nurse's

employee medical records to Ex-husband's

anorney because such records are not PHI, and

the Privacy Rules, therefore, do not govern uses

or disclosures of such records.

COMPLAINTS16. To initiate a complaint against Nursing

Home alleging a violation of the Privacy

Rules based on disclosure of Patient's PHI to

Ex-Husband's attorney, Mother:

a. Must first file the complaint with Nursing

Home's Privacy Officer, and, if not satisfied

with the resolution, may appeal to a designee

of the Secretary of HHS.

b. Must first file the complaim with Nursing

Home's Privacy Officer, and, if nOt satisfied

with the resolution, may appeal to the

Arkansas Department of Human Services,

Office of Long Term Care.

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

Howard (Bear) Chandler

Privacy Rules, or within the six years preceding

the request, whichever is later.47 Exceptions to

the accounting rule include disclosures to carry

out treatment, payment, and health care opera­

tions; to the patient or personal representative;

in response to an authorization; for Ihe covered

entity's directory or to a person involved in the

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

tional institutions.

If an accounting is required, it must include

the date of the disclosure; the name, and if

known, the address of the person or emity to

whom the PHI is disclosed; a brief description

of Ihe type of PH I disclosed; and a briefdescrip~

tion of the PH I disclosed.48

Generally, the covered emity must provide

the patiell( with the accounting within 60 days

of the patiem's request and may not charge the

patient for the COSt of preparing the omaccounting within a 12-month period. There­

after, the covered emity may impose a reason­

able, cost-based fee for each subsequent

accounting in the same 12·monrh period.49

Because covered entities are required to pro­

vide accountings upon patient request, they

must document the disclosures covered by the

accounting rule.

Correct Answer: a. Disclosures in legal pro­

ceedings (I, V) or to health oversight agencies

(III) must be documented and accounted for.

Disclosurcs VI and IX arc improper because

they should not have been made without an

authorization, and a covered entity must

account for such disclosures.

The rest of the listed disclosures faU within

the following exceptions to accounting require­

ments: II (hospital directory disclosure); IV

(disclosure to family member involved in pay*

mcnt for Patient's ore); VII (disclosure made

pursuant to a valid authorization); VIII (disclo­

sure made for quality assurance purposes-health

care operations); X (disclosure made to obtain

legal services-health care operations).

EMPLOYEE MEDICAL RECORDS

15. Disclosure of medical information in

Linda L. Taylor

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

required because the disclosures are hoth

required by law and ro a health oversight agency

acting within the scope of irs authority.

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

of Patient disclosed to the COllr( in suppOrt

of Parents' petition for guardianship to

establish Paticm's incapacity.

II. Hospital spokesperson's disclosure to

newspaper Reporter about patient's gener­

al condition.

III. Nursing Home's disclosure ro Survey

Agency.IV. Disclosure 10 Sister about claims issues by

Insurance Company's Customer Service

Manager.

V. Disclosures pursuant ro the subpoena

issued by Driver's attorney.

VI. Nursing Home Clerk's improper disclo­

sure to Ex-husband.

VlI. Disclosure to Parents' attorney, if the

attorney obtains a valid authorization

from one or both parents.

VIII. Nursing Home's disclosure to Consulcant.

IX. A disclosure by Insurance Company pur~

suallt ro Sister's written request for access

10 Patient's PH I.

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. one would require an accounting.

Overview of issues. With some exceptions,

patients have a right to receive an accouming of

PHI disclosures made by a covered entity on or

after April 14, 2003, the effective date of the

24 TI,e Arkansas Lawyer www.arkbar.com

•.---- 1

files a complaint.5-4

Correct Answer: Co Mother may file simulta­

neously a complaint with the ursing Home's

Privacy Official and with the SecKtary of HHS.The Secrc12ry has designated. the Dallas region­al office of the Office of Civil Rights [0 <acceptcomplaims originating in Arkansas. 55 The

ursing Home's arice of Privacy Practices

must provide information on how to file a com­

plaint. along with the comact information.56

The Nursing Home should consult its policies

and procedures and provide Mother with infor­

Illation relating to the rcsolurion of her com·

plaint according to its policies. The Home

should documem its investigation and any cor­

rective action.

There is no requirement under me 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

ty of HIPAA, beaus< HIPAA does nor provideMother with a private right of action.

BUSINESS ASSOCIATESt 7. Which of the following contractual .-cla­

tionships does Itot require business associate

language in the contract or in an addendum

to the contract?

a. Hospital's contractual relationship as a pre­

ferred provider for Insurance Company's

benefit plan.

b. ursing Home's contracrual relationship

with Consultant.

c. Hospital's contractual relationship with its

lawyer.

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. con­

sulting, daca aggregation, management, admin­

inrative, 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 busi­

ness associates, who may create and receive PHI

on the covered entity's behalf, as long as the cov­

ered entity receives satisfaccory assurances in a

written agreement that the business associate

will safeguard the inform:uion.58 The Privacy

Rules lay OUt the specific dements that must beaddressed in a business associate agreement.59

The preamble to the August 2003 modifications

to the Privacy Rules further scates that agrtt­

menu may not authorize business associates co

use or further disclose PHI in a manner that

would violate the Rules if done by the covered

entity, unless the use or disclosure is for the

business associates' management and adminis­

tration and to carry Out its legal responsibilities,

or co provide data aggregation services to the

covered entiry.60

HIPAA does nO[ regulate business associatcs,

unless they are aJso covered emitics. If the busi­

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

the covered entity is accoum~ble to the HHS

Offia: of Civil Rights if it knew of a pattern of

activity or practia: that constituted a material

breach of the business associate's obligacion, and

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

or end the violation; or if such steps were unsuc­

cessful, failed to tcrminale the contract or

arrangement, or if termination was not feasible,

failed to report the problem to the Secretary ofHHS.61

Correct Answer: a. A health plan's contrac­

roal 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

other parry. Sometimes,:a health plan may con­

tract with a provider to perform certain fUnc·

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

might contract with a professional associacion of

providers to ~dminister claims of providers in

the group, or to perform utilization manage­

ment 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 dis­

close PHI only as permitted in the business ass0­

ciate agreement, and have obligations to protect

health information similar to the covered enti­

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

For example, if the business associate uses a sub­

contractor to whom it further discloses PHI, the

business associate must observe the minimum

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. Funher, business associates

will need to re-examine their record-retention

rules because HIPAA documents must bemained for six_ ~.fTom the date of creation,

or the date of last use, whichever is latcr.

PENALTIES FOR HII'AA VIOLATIO S18. In the first year of HIPAA Priv~cy

rnforcrmrnt, which of thc following individ­

uals arr most likely to facr ~nonal fines

under HIPAA's penalry statute?

a. Nursing Home Clerk, for knowingly failing

to verify the identity of Ex-husband's anor­

ney before mistakenly providing him

Patient's medical records.

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

Patient's PHI for commercial advantage.

c. CredentiaJing Specialist, for knowingly

obtaining and using Patient's PHI in a man­

ner outside his job description.

d. one are likely 10 ~ sanctioned personally,

at least in the initial year of enforcement.

Overview of issues. Persons, both individ·

u.al and legal, who knowingly and in violation of

the Administrative Simplification Act (a) use or

cause to be used a unique htalth identifier; (b)

obtain individually identifiable health informa­

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

ually identifiable health infotmation to another

person, shall be (a) fined not more than

$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

ted with intent to sell, transfer, or use individu­

ally identifiable health information for commer­

cial advantage, personal gain, or malicious

harm.62

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 penal­

ties, 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 vol­

untary compliance with the rules promulgated

to carry out the HIPAA provisions."63 Em­

phasizing the technical assiscance continuing to

be produced by the Office of Civil Rights, the

preamble states that such efforts "will continue

after the April 14, 2003, compliance date, as

OCR ltarns from its compliance activities and

from those who are implementing the Privacy

Rule where additional guidance and assistance

are nceded. "64

Clerk would most likely not be sanctioned

for her mistaken disclosure of Patient's records

HIPAAcontinued on page 34

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vol. 38 No. 4/Fall 2003 TI,e Arkansas Lmryer 25

HOW THE CIVIL JUSTICE REFORM ACTCHANGES ARKANSAS TORT LAW

by Robert B Leflar

The Civil Justice Reform Act of 2003,' aimed atrestraining legislatively perceived excesses in tort litiga­tion, did not transform Arkansas tort law beyond recog­nition. The fundamentals of most tort cases remain thesame. However, the law does make significam changesregatding (I) allocation of responsibility among partiesand nonparties in personal injury and property damagecases, (2) punitive damages, and (3) medical injury

actions. Attorneys handling cases involving anyof these areas must familiarize themselveswith the new law and its implications.Additionally, venue requirements arealtered for many types of claims.J. Joint and Several Liability AlmostErased

Probably the single most important fea­rure of rhe new statute is that in personalinjury and property damage cases, traditionaljoint and several tortfeasof liability is replaced bya new system in which defendants typically are liable foronly their own share of responsibility for a plaintiff'sharm as determined by the trier of fact. 2 Moreover, asexplained more fuHy in a forthcoming article,3 in a his­toric shift from previous law, the trier of fact is nowrequired to "consider the fault of all persons or entitieswho contributed to the alleged injury ... regardless ofwhether 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 amongthe plaintiff and the named defendants, but also amongpersons foreign to the action, if a defendant gives noticeat least 120 days before trial brieAy setting our the basisfor believing the nonparties to be at fault. s These 110n­parties to whom fault could be assigned might includeour-of-state or foreign firms mat cannO[ be sued for lackof personal jurisdiction; persons or entities protected bysovereign, 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 worthsuing"; 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,"7this "empty chair" provision creates powerful incemivesfor defendams to dilure their own liability by comend­ing that nonparties are at least partially responsible forthe plaimiff's injury.

Joint and several liability is preserved, however, in rwosituations. The first is when a person at fauJr is

"acting as an agem or servam" of a partydefendam.8 Thus a non-negligent

employer could still be held vicarious­ly liable for a plainriff's injury causedby the negligent driving of anemployee on company business. Thesecond is where a party defendant

was "acting in concert" with a personinjuring the plaintiff. "Acting in con­

cert," however, is defined more strictlythan at common law, as "emering into a con-

scious agreement to pursue a common plan or designto commit an intentional tort and actively taking part inthat 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 thatharm, and would be severally liable fOf a portion of itonly 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 apartial reallocarion of mat share to orner tOrtfeasordefendams. In such a case the courr will increase theshare 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 increasein 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' faulrshares in effect are assigned to plaintiffs.II. Punitive Damages Restricted

Responding to concerns about large punitive damageverdicts in Arkansas!l and elsewhere, the GeneralAssembly 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 reachestorlS, products liability, and various COUTUS in th~ ar~a ofh~alth law. His scholarly work. in addi­tion to thou areas, extends to articks and" book (in Japanese) comparinglapanest and Americanhtalth 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

J

support a punitive damage award, limited theamounts awardable, and created a bifurcated proceed­ing for considering punitive damage claims. Unlikethe new law's fault allocation provisions discussedabove, 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 occurin business tOrt cases rather man personal injury cases.

The new law codifies existing precedent!3 holdingthat to recover punitive damages plaintiff must showdefendant engaged in either of twO classes of conduct;"(I) the defendant knew or ought to have known, inlight of the surrounrung circumstances, mat his or herconduct would naturally and probably result in injuryor damage and that he or she continued the conductwith 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 thequantum of evidence required ro support this show­ing. It replaces "substantial evidence," the prior stan­dard for purposes of appellate review,lS with "clearand convincing evidence."16

The Civil Justice Reform Act limi[S the amount ofpunitive damages in cases in which the defendant'sconduct was malicious or reckless (the first class ofconduct above), but not in cases in which defendam'sconduct was imemional (the second class ofconduct).The punitive damage recovery limit for each plaimiffharmed by a defendant's malicious or reckless conductis the greater of $250,000 or three rimes the amoumof compensarory damages up to $1 million, adjustedtriennially for inflation. I?

Trials involving punitive damage claims must bebifurcated at the request of any party. The first parr ofthe trial focuses solely on liability for compensarorydamages. Only if compensatory damages are awarded

may the trial proceed to consideration of punitivedamages, and only during this second stage can "evi_dence of the financial condition of the defendam andother evidence relevant only to punitive damages" beadmitted. 18

III. New Rules for Medical Injury ActionsAmong the major proponents of the Civil Justice

Reform Act were the Arkansas Medical Society andthe Arkansas Hospital Association, both concernedabout increases in liability insurance premiums.Several provisions of the new law created ruJes specif­ically benefitting health care providers in medicalinjury actions. Among these provisions are require­men[S that (a) plaintiff file a medicaJ expert's affidavitof reasonable cause at the outset of an action; (b) theaction be filed where the allegedly negligent actsoccurred, 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 outvicarious liabiliry theories adopted in other statesshifting 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 sourcerule regarding plaintiff's entitlement to damagesreflecting fuJi rather than discounted cos[s of medicalservices. FinalJy, it requires periodic rather than lumpsum paymenr of fi"ure damages exceeding $100,000.

Expm Medical Affidavit Requirement: The GeneralAssembly, concerned about allegations of frivolousmedical malpractice actions, beefed up existing deter­rents against "false and unreasonable pleadings." Thenew law provides that in medical negligence cases inwhich expert testimony is required, reasonable causefor the action "shall only be established by the filingof an affidavit that shall be signed by an expertengaged in the same rype of medical care as is eachmedical care provider defendant."19 The affidavitmust state with particularity the basis for the expert's

vol. 38 No. 4/Fall 2003 n,e Arkansas Lawyer 27

opinion that the applicable standard of care wasbreached, causing harm. The affidavit muSt be filedwithin 30 days after the filing of the complaint, or theaction will be dismissed. 20

l7enue Limitation: The new law provides that actionsfor medical injury "shall be filed in the county in whichthe alleged act or omission occurred."21 This will gener­ally be in the defendants' home county. The law doesnot specifY where the action should be filed if a courseof treatment takes place in more than one county, as ina case where a patient alleges misdiagnosis by a practi­tioner in one county, referral to a specialist or hospital inanother county, and injury resulcing from negligenttreatment there and from negligence in the operation ofthe managed care plan, headquartered in a third counry,with which all the individual providers are affiliated. 22

Expert Witness Limitations: Under the new law, exceptfor cases in which the asserted negligence can be under­stood as a matter of common knowledge, plaintiffs arerequired to prove the standard of care and breach of thatstandard through expert witnesses "of the same specialtyas the defendant. "23 This provision is pardy a responseto concern about "hired gun" plaintiffs' experts testifY­ing in areas in which they do not practice. The provisionoverturns 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 provision might also be read to prevent a specialistfrom testifYing about the standard of care for a generalpractitioner 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 withstaff privileges to use the hospital's facilities and person­nel in treating their patients. These theories limit orreject the hospital's traditional defense that the negligentphysician is an independent COntraCtor for whose actsthe hospital has no responsibility. The theories are rypi­cally based on the contention that the physician is anapparent agent of the hospital, on the hospital's tight to

control key aspects of the physician's work, or on thepremise that the work negligently performed (for exam­ple, in the emergency room) is an "inherent function" of

the hospital. 26 Proponents of these theories argue thatthey reflect the realiry that medical care is team care, andthat focusing liability on the organization rather thanblaming the individual physician promotes a more coor­dinated approach to error prevention and higher qualityhealth care overall.

The Civil Justice Reform Act, in contrast, attempts to

restrict vicarious liability of hospitals to situations inwhich the plaintiff proves the allegedly negligent med­ical care provider is an employee of the hospital, when

28 TI,e Arkansas Lawyer www.arkbar.com

"the only reason for naming the facility as a defendant isthat the defendant medical care provider practices in thefaciliry."27 This language does nOt apply to claimsagainst the hospital based on the hospital's own institu­tional negligence, for example in credentialing or infec­tion control.

Inspection Report Admissibility: The Civil JusticeReform Act includes a provision limiting admissibilityof surveys and inspections by state and federal regularorsand by accrediting bodies such as the Joint Commissionon Accreditation of Healthcare Organizations. The newlaw makes such materials admissible only if "relevant tothe plaintiff's injury"28 (as opposed, perhaps, to otherissues in the case such as the standard of care or the pro­priety of punitive damages). The provision applies onlyto 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 medicalcare are limited to "costs actually paid" and costs "whichremain unpaid and for which the plaimiff or any thirdparty shall be legally responsible."29 This provisionreverses prior case law holding that the amoum bywhich medical services are discounted constitutes a ben­efit from a collateral source, similar to an expense cov­ered by an insurance policy, which under the collateralsource rule is nOt taken into account to diminish plain­tiff's damages.3o

Periodic Payment of Future Damages: The new lawrequires the court, at the request of either party, to orderthat future damages exceeding $100,000 be paid inwhole or in part by periodic payments rather than in alump sum.31 This changes the prior statute giving thecourt 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 ofsignificant changes but nOt a revolution in Arkansas tortlaw. 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 newlaw will certainly favor defendants and their liabilityinsurers as a class. Instances of injustice likely to ariseunder the law are not hard to imagine,33 and one canexpect challenges to some of its provisions on separationof powers and other constitutional grounds. While thecourts work through these issues, attorneys handlingArkansas tort cases are well advised to give close atten­tion to the new law's language and structure. II

EndnotesI. 2003 Ark. Acts 649 (effective March 25, 2003).

The new law is codified in Ark. Code Ann. §§ 16­55-201 to -220, 16-114-206, and 16-114-208 to -

TortContinued on page 38

Arkansas BarAssociation

CLE Calendar

HAUNTED BY HIPAAOctober 31, 2003

UALR Bowen School of LawLirrle Rock, AR

BRIDGING THE GAPNovember 6-8, 2003

UALR Bowen School of LawLirrle Rock, AR

IMMIGRATION LAW

November 14, 2003Convention Center

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BANKRUPTCY REPRISE

November 21, 2003Clarion Inn

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CLE & DUCK HUNTING

(Fifth District)December 5, 2003

Phillips Co. Communiry CollegeStuttgart

MID-YEAR MEETING

January 22-24, 2004The Peabody Horel

Memphis, TN

ANNuAL MEETING

June 9-12, 2004Arlington HotelHor Springs, AR

ClE ClE ClE ClE

For more information. contact Virginia Hardgrave, Arkansas Bar Association, 800~609-5668,501-375-3957, vhardgrave@arkbar.com OR CHECK OUT THE CLE PAGE atwww.arkbar.com

VoL 38 No. 4/Fall 2003 n,e Arkansas lawyer 29

Lawyer Disciplinary Actions

Final actions from July /2, 2003, throughSeptember 24, 2003, by the Commitree 01/

Professional Conduct. Summaries prepared by the

Office ofProfessional Conduct. Full text documentsare available on-line at

http://courtJ.state,ar.m/courts/cpc.lmnl.

SURRENDERS,

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

1015, on September 3, 2003, petitioned the

Ccurr co accept the surrender of his Arkansas law

license, as a result of his disbarment in Florida byOrder filed September 18, 2003. In Florida,

Pervis faced disciplinary complaints arising out of

claims that he failed to pay medical providers

sums ranging from $3,000 to in excess of

$21,000 owed from ar least four personal injury

cases he handled that senled, and other types of

complaints. On September 18, 2003, rheArkansas Supreme Coun accepted Pervis' surren­

der and barred him from the practice of law in

Arkansas.

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J. F. ATKINSON, JR., #76003, orParis and FortSmith, in Committee No. 2003-061, by Consent

Order filed August 4, 2003, on a referral by the

Arkansas Supreme Coun, for violations of Model

Rules 1.1, 1.2(a), 1.3, 1.4(a), 1.4(b), 3.4(c), and8A(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,

which was denied by the trial court in August

1999. She had been convicted of first degree

murder and sentenced to twenry years. An

untimely notice of appeal was filed. Nothing else

was done in the appeal umil February 2003,

when Atkinson filed a motion for belated appea.!

with the Supreme Coun Clerk. He stated he lost

or misplaced the transcript. The Court cited

Atkinson for a "show cause" on conrempt, he

pled guilty and was fined $500. The Court

denied Ms. Efrud a belated appea.!, as the rules

require such an application ro be made within

eighteen months of the order denying same at the

trial Court, and hers was much later than chat.

DONNY G. GILLASPIE, #61010, of EIDorado, in Committee No. 2003-031, by

Committee ballot vote in May 2003, on a refer­

ral 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 sus­

pended 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

Gillaspie accepted responsibility for failing to

timely file the notice of appeal. His failure to file

a response waived his right to a public hearing.

Gillaspie filed a petition for reconsideration of

the Panel's balloc vote decision. The Panel found

Gillapsie failed ro meet his burden on reconsider­

ation 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

Dickerson Law Firm. P.A. Seeking Anorneys

* DoJustice * Love Mercy *

DAVlS HENRY LOFfIN, #79196, of West

Memphis. in Committee No. 2003-034, by

Consent Order filed August 26, 2003. on a com­

plaint by Georgia Danielle Holmes. for violationsof 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 rep­

resent her in a bankruptcy. which was filed. She

later lost her job and missed her plan paymentSfor 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 thevehicle returned to Holmes because the reposses­

sion 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 torepresent 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 srappedcontacting 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

Dickerson Law Firm, P.A' J Arkansas' leading debt relief firm and largest personalinjury/disability firm is seeking attorneys for bankruptcy and personal injury. Excellentsalary and benefits. Opportunity for growth and advancement. Training available..

Send resumes to: Gail D. Ashmore, Dickerson Law Firm, P.A., 110 WoodbineHot Springs, AR 71901, Fax: 501321-9848

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 mentionedchanges in various documentS. but did not

intend for him to make these changes. After sec­

ond meeting, Matthews produced drafts of estate

planning documents for her review. Later she

received a packet of estate planning documentSfrom Matthews with his bill for $500 for consul­

tation and document preparation. According to

Bailey. at no time did Matthews inform her he

was an anorney whose license was currendy sus­

pended. 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 com­

plaint by Floyd Williams, for violations of ModelRules 1.2(a), 1.3, 1.4(a) and 1.16(d), was repri­

manded and assessed $50 costs. In mid-2001 Mr.

McCullough was hired and paid co assess post­

conviction 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 partialrefund 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.

appeal, conditioned on his posting a $5,000

bond and nOI having any additional formal com·

plaints filed against him during the Stay.

DAVlD LEWIS CLARK, #95093, ofAmity, AR,

in Commirree No. 2003~023, by Order filed

August 19. 2003, on a referral by the Arkansas

Supreme Court. for violations of Model Rules1.3 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, andhe was fined an additional $500. Clark repre­

SCnted 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'smotion to dismiss the appeal was granted.\'(Ihisenant's pro SC motion for reinS£atement was

granted. Clark was relieved as her counsel andreferred 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 there­

after, was fined $2.500, and assessed S250 costS.(This suspension runs concurrent with his cur­

rent 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

DAVID LEWIS CLARK, #95093, ofAmity, AR,

in Commince No. 2003-022, by Order filedAugust 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 repre­

sented Whisenant on appeal in CACR 2001­

1417. 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.

Vol. 38 No. 4/Fall 2003 TIle Arkansas Lawyer 31

Business ValuationsComprehensive Technical Expertise in Business Valuations. Forensic

Accounting, and Consultations for Trial Testimony CHARLES D. "SKIP" DAVIDSON, #73026, of

Little Rock, in Committee o. 2003~043, by

Order flied August 5. 2003, on a complail1t 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

1999 to represem Mr. Blunt III a

paternity/wrongful death acrion arising out of an

accident at Six Flags Over Texas. Blunt needed

transportation 50 attorney arranged for him (Q

buy an Acura for llot more than $30,000 and

financed il through a bank in which anorney was

appeal. an untimely order. His motion for rule on

the clerk was granted. on his acceptance of

responsibiliry for the mistake.

LORI A. MOSBY, #94016, of Little Rock, '"Committee No. 2003-008, by O,dcc filed July30, 2003. on a complaint by Pamela Griffin, for

violations ofModci Rules 1.3, 1.4(.), 1.5(c), .nd1.15{b). was cautioned and assessed 550 COSts.

Mosby represemed Griffin in a personal injury

daim in 2000-2001 which sell led for $11,000

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

t1ement check was shon $1.310.00 needed to pay

the client's bill with a chiropractor. The diem was

contacted by the chiropractor about her unpaid

bill. The Office of Professional Conduct wrote

Mosby bringing this maner to her anention in

September 200 1 and December 2002. She final­

ly 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.

RODERICK H. WEAVER, #74153, ofClarksville. in Comminee o. 2002-143. by

Consent Order filed july 18. 2003. on a com­

plaint by Joann Collins. for violations of Model

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

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

sented Collins in a divorce. He was to prepare a

Qualified Domestic Relations Order (QDRO)

after the final hearing April 16. 2001. In june

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

former husband as pan of the property senle·

ment agreement. He conditioned delivery of the

deed to Ms. Collins upon her payment of the bal­

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

September 2001 but did not get the deed. As of

July 2002 no QDRO h.d been accep,ed by hccformer husband's employer. After the formal

complaint was served on Mr. Weaver, he sent the

deed. to Collins in ovember 2002. and finally

got a second revised QDRO submined to the

plan administrator in February 2003.

MICHAEL L. ALLISON, #87003, ofMorrilton. 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

RICKEY H. HICKS, #89235, of Li,t1e Rock, inCommittee o. 2002-139, by O,de, filed July18, 2003. on a complaint by Myrtle "Merle"

Smith. for violations of Model Rules IA{a) and

I A{b). was cautioned. Smith hired Hicks in

january 2000 to represent her in an employment

discrimination suit against the Arkansas

Depanl11ent of Human Services. Difficulties in

communication ensued. Mr. Hicks failed to file

discovery responses and F.1iled to advise his c1iem

on her options of trial before lhe Federal

Magistrate Judge and mediation, (0 Iry to move

her maner toward resolution. Unable to obtain

information about her case from Hicks. she ter·

minated his services in July 2001 and hired

another attorney to pursue her litigation.

CAlITIONS,

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

tribute the bulk of the funds until laler in 1995

and in early 1998. He failed (Q pay a bill of

$4,000 from a surgeon for services to thc client in

1991-92 arising out of her injuries, and failed to

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

settlement funds until 2002. He was unable to

provide requested trUSt account records less than

five years old and a contemporaneously produced

senlement sheer. The physician was paid in full

in April 2003. Panerson successfully defended

Farlee in 1996. to Ihe Supreme Coun, against an

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

ment from her first anorney in the case.

Schwartz & Associates, CPAs11510 Fairview Road, Suite 100Little Rock, AR 72212-2445(501) 221-9900, (501) 221-9292 faxemail;schwartz@busvalu.comRichard l. Schwartz

the defendant took Chapter 7 bankruptcy after

the suit was dismissed, precluding any rcfiling_

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Expert Witness TestimonyCourt-Appointed

RALPH M. PATIERSON, JR., #68048, ofNorth 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

ROY C. "Bill" LEWELLEN, #82093, ofMarianna, in Comminee '0. 2000·084. byOrder filed Sepremlxr 8. 2003. on a complaint

by United States District Judge Richard A.Enslen of the Western District of Michigan, for

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

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

assessed $50 costs. In 1999 Lewellen representeda client in a criminal case in federal COUrt inMichigan, where Lewellen was not adminoo.

Lewellen was djrected by judges on several occa­

sions to file admission papers hut apparently

failed (0 do so. He fuiled to correct the record

when asked about his Slatus by a judge. His c1iemand he missed a coun appearance for sentencing

in February 2000, due to a snowstorm in

Arkansas. Lcwdlen told the count with Lewdlen

advising his client not [0 try to go to Michigan

for COUrt. The coun had to r~1 the hearing and

later issued a show cause order for Lewellen for

what the court took to be an inaccurate State·

ment to the coun aboUl Lewellen's admission sta·

lUS. After a hearing the coun found Lewellen had

violated Model Rules 1.3 and 3.3 and ccnsured

him. This finding was affirmed on appeal by the

Sixth Circuit Coun of Appeals. Immediately

before his public hearing in Arkansas. Lewellen

offered a plea ro the Pand, which was accepted.

for the sancrions stated herein.

Lawyer

32 TI,e Arkansas La\\)'Cr www.ar1<bar.com

Lawyer Disciplinary Actions

the other side, and she filed discovery responses

as quickly as she could after she obtained respons­

es from her client.

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-

lations of Model Rules 1.3, 3.4(c), and 8.4(d),

was cautioned and assessed $50 costs. While rep­

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

FrankHamlin

BobHornberger

SidMcCollum

JackDavis

a major owner, with the attorney making the

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

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.

BRUCE B. TIDWELL, #96115, of Little Rock,

in Committee No. 2003-067, by Order filedAugust 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 res­

idential property, attributed to the property own­

ers association. Dr. Safman stated Tidwell told

him one of the anorneys in the firm was a mem­

ber of the POA, but did nor explain the signifi­

cance 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 con­

flier 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 con­

flict possibility to his client, and failed to termi­

nate the representation when his representation

became materially limited by his partner's

involvement with the POA.

GAIL THORNTON SEGERS, #97233, ofFayeneville, 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 cus­

tody case. Segers failed to cimcly answer inter­

rogatories. 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 exclud­

ed 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

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Little Rock, AR 72201501-376-2121

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Vol. 38 No. 4/F"1I 2003 TI,e Arbns"s Lawyer 33

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, amongother things, failure to effectively train or to sanc­tion the employee for the unaurhorized disclo­

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 obtainand use PHI in a manner inconsistent with hisjob function. and arguably disclosed PHI know­ingly, at least indirectly. He would be the most

likely person of the three referenced here to 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.

CONCLUSIONThe questions set forth above are merely

examples of the myriad HI PM-related simations

thM arise each day for a covered emity. No doubt

covered entities believe that each day of HII'M

compliance efforts is itself a "test.".

EndnotesI. The Privacy Rules are codified at 45

CER.• Parts 160 and 164.2. Preemption provisions are comained in

45 CER. Part 160. Subpart B.3. 45 CER. § 164.520.4. 45 CER. § 164.520(c)(2)(i)(B).5. 45 CER. § 164.520(c)(2)((ii).6. Office of Civil Rights, Frequemly

Asked Quesrions. #330 Uuly 2003).7. 45 CER. 164.520(c)(3); 45 CER. §

I64.508(b)(3).8. 45 CER. § 164.510(a).

9. 45 CER. § 164.510(b).10. 45 CER. §164.510(b).II. 45 CER. § 164.506.12. Rules & Regs for Hospitals and Related

Insrirurions. § 14(A)(l8).13. Stt definition of "payment" in 45

CER. §164.501.14. 45 CER. § 164.501.15. 45 CER. § 164.502(b).16. 45 CER. § 164.514(d)(2).17. 45 CER. § 164.514(d)(3).18. 45 CER. § 164.514(d)(5).19. 45 CER. § I64.530(c).20. 45 CER. §164.530(c)(2)(ii).21. Sg; HHS. Office of Civil Righrs Privacy

Guidance (as revised April 3. 2003).22. 45 CER. § 164.508.23. 45 CER. § 164.508(c).24. 45 CER. §164.530(b).25. 45 CER. §164.530(a).26. 45 CER. § 164.502(g).27. Ark. Code Ann. §28·68·20 I.28. 45 CER. § 164.524(c)(4).29. 45 CER. § 164.514(h).30. These include court orders, search war­

rants, grand jury subpoenas, subpoenas

or SUlllmons imud by a judge or magis­trate; and administrative orders issuedduring the course of an administrativeprocuding. 45 CER. § 164.512 (e)and (I).

31. A qualified protective order is defined

under the Privacy Rules as an order or

stipulation by the parties (0 the action

that prohibits the parties from using or

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 destruc­

tion of the PH I (including all copies) at

the end of the lidgation or proceeding.

45 CER. § 164.512(e)(I)(v).32. 45 CER. § 164.512(e)(l)(iii)

33. 45 CER. § 164.512(e)(iv); '" also.supra Note 29 defining "qualified pro­

tective order."

34. 65 Fed. Reg. 82,517.35. 45 CER. § 164.522(a).36. 45 CER. § 164.522(b).37. 45 CER. § 164.524.38. 45 CER. § 164.526.39. 45 CER. § 164.528.40. 42 CER § 483.1 0(b)(2).41. See 45 CER. §160.202.42. 45 CER. §164.524(b)(2).43. 45 CER. §164.524(b)(I).44. 45 CER. §164.501.45. 45 CER. § 164.501.46. 45 CER. § 164.512(d).47. 45 CER. § 164.528.48. 45 CER. § 164.528(b)(2).49. 45 CER. § 164.528(c).50. 45 CER. § 160.103.51. 45 CER. § 164.530(a)(I)(ii).52. 45 CER. § 164.530(d)(I).53. 45 CER. § 164.530(d)(2).54. 45 CER. § 164.530(g).55. ~ OCR Fact Sheer. How to File a

Health Information Privacy

Complaint, at

hnp://www.hhs.gove/ocr/privacyhow­

w.htm

56. 45 CER. § 164.520(b)(vi).57. 45 CER. § 160.103.58. 45 CER. § 164.502(e).59. 45 CER. § 164.504(e)(2)·(4).60. 67 Fed. Reg. at 53265.61. 45 CF.R. § 164.504(e)(I).62. 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.,

Subparr E.63. 68 Fed. Reg. ar 18897.64. !;l

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34 The Arkansas Lawyer www.arkbar.com

SIDNEY SANDERS McMATH

Sidney Sanders McMath, formerGovernor of Arkansas, World War II war

hero, and prominent Litde Rock attorney.

passed away October 4 in his Little Rockhome. He was 91 .

His celebrated life began June 14, 1912near Magnolia "in a dogtrot cabin on the'McMath Homeplace.'" 1£ 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 ofIndependence; and two grear-grandfathers

who fought in the Civil War. Later he wouldfollow in his family's military foorsreps.

McMath's youth was spent largely in therural South, where at age eight he scarredpicking 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 firstpaved 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 yearhe hirchhiked to Fayetteville ro enroll in theUniversity of Arkansas. In 1936 he graduat­ed with a Bachelor of Arts and law degree.

Afterward he received a Marine CorpsReserve commission and opened a law officein HOt Springs. "With World War II loom­

ing, he volunreered in August 1940 foractive 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). Hereceived a battlefield promotion to lieu­

tenant colonel and was awarded the SilverScar 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 prosecut­

ing attorney and has been credited with

In Memoriam

cleaning lip corrupt politics in Hot Springs.It was this cleanup thar "made McMath the

front runner in the 1948 Democratic guber­natorial primary. In that era, Democratic

nomination in Arkansas was tantamountto 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 "whitesonly" rule for rhe Democratic Party,

improved welfare-assistance for the elderly,

and insisted on bringing electricity to ruralcounties.

After serving as Governor, McMath went

back to trial work, teaming up with long­time partners and friends, Henry Woods

and Leland Leatherman. "The three estab­

lished their law firm and dedicated theirpractice to representing the rights and inter­

ests of workers, victims of personal injuryand 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 BarFoundation; Pulaski County Bar

Association; American College of TrialLawyers; and the Inner Counsel of Trial

Lawyers. He also served as president of theInternational Academy ofTrial Lawyers.

"The concept of freedom, equality ofopportunity and dignity for all citizens is thebasis and bulwark of our national pride and

our nation's strength. America's passion for

equal justice is the unifying force that bindsus together. However, experience has taught

us that these human rights are nor secureunless they can be made good by a lawyer ina court of law" (from www.mcmathlaw.com.which excerpted it from Trial Lawyer, writ­

ten by McMath).Although McMath had gone blind in

recent years, he was able to finish his mem­

oir, Promises Kept, which was just recentlypublished 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 cen­

tury, Sarah Anne Phillips, in 1994. He issurvived by his wife, Betty Dortch Russell;

five children, Sandy, Phillip and Bruce

McMath. Melissa Hatfield and Patricia

Bueter; ten grandchildren; and one great­

grandchild.

VoL 38 No. 4/Fall 2003 The Arkansas lawyer 3S

In Memoriam

JUDGE W.H. "SONNY" DILLAHUNTY

Judge W.H. "Sonny" Dillahunty, 2001recipient of rhe Arkansas Bar Association'sOurscanding Lawyer Award, died August 2in his Little Rock home.

Dil1ahumy. who served as U.S. Attorneyfor rhe EaStern District of Arkansas under

Presidents Johnson, Nixon, Ford and Carter,

began his legal career at the University ofArkansas School of Law where he received

his LL.B. in 1954.After graduation, he went iIHo private

praccice in West Memphis before beingelected ciry attorney. He was re-elected to

this position five times.In 1997 he was appointed Pulaski

County chancery judge. In 1999 he wasappointed special justice for the ArkansasSupreme COUft, and he was appoimcd spe­cial member and chairman of the ArkansasStare Police Commission.

An anicle in the Arkansas Democrat­Gazette quoted U.S District Judge RobertDawson as saying, "Sonny taught a genera­

tion 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 theArkansas Bar Association, he served repeat­

edly 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 inPulaski County.

36 TIle Arkansas La\\ycr VV'vV\fII.arkbar.com

Dillahunty was also a member of The

Omicron Delta Kappa (OKD) honor socie­

ty, 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

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 prosecut­

ing artorney for West Fork, FarmingtOn andPrairie Grove.

He was a member of the Arkansas Bar

Association, where he served on the Group

Insurance Committee; the FayettevilleHumane Society; and the First Chtistian

Church of Russellville.He is survived by his life panner, Marsha

Seidenschwarz; his mother, Gireta SmithDennistOn 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 Sciencesfor cancer research, or the Humane Society.

JASON R. HALL

Jason R. Hall of Fayetteville died July 21at 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 step­

mother, Aaron and Terri Hall of Flippin;twO brothers, Aaron Hall Jr. and Kenneth

N. Hall, both of Fayetteville; and paternalgrandfather and step-grandmother, Nola

and Loretta Hall of Flippin. He was pre­ceded in death by his mother, Kitty Hall,

and paternal grandmother, Ernestine HaiLMemorials may be made to Leukemia

Society of America.

COLONEL C.E, RANSICK

Colonel C.E. Rallsick (1913-2003)served as Executive Direcror of the ArkansasBar Association and the Arkansas Bar

Foundation from 1969-1983.It was his second legal career, and it fol­

lowed 26 years of service as a Regular Army

Colonel in the Judge Advocate General'sCorps. His military career merited three

Army Commendation Medals, two Legionof Merit Medals, and over 25 other com­

mendations.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. RansickAward of Excellence in his honor and recog­nition by the American Bar Foundation asits first Trustee Emeritus.

In a memorial resolution honoring Col.

Ransick, the Board of Governors of theArkansas 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 buildingof 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.; MarkRansick of Austin, Texas; Cindy Radleof Fredricksburg, Texas; as well as nine

grandchildren and three great-grand­children.

The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt oftheftllowing memorial, honorarium and scholarship contributions received during the period

July 1, 2003 through September 30, 2003:

IN MEMORY OF FERN MURRAYCLAYCOMB

Tom and Debbie Daily

IN MEMORY OF ANDI COLLINSJudge William R. Wilson, Jr. and Cathi

Compton

IN MEMORY OF JUDGE W. H."SONNY" DILLAHUNTY

Judge Raben FussellMartha HueyWilliam A. Martin

Judge John B. PleggeDr. Robert R. Wrighr and Judge Susan

Webber Wright

IN MEMORY OF LUDY DUDLEYJudge William R. Wilson, Jr. and Cathi

Compton

IN MEMORY OF CLINT HUEYJudge Raben Fussell

IN MEMORY OF COL. C. E.RANSICK

Don HollingsworthMr. and Mrs. John P. Gill

IN MEMORY OFCOL. C. E. RANSICK,DESIGNATED TO THE COL. C. E.RANSICK SCHOLARSHIP FUND

Arkansas Bar AssociationAdrienne and Steve BabiakJoseph L. BrandhuberCompass ClubMr. and Mrs. Robert ComptonJack C. DeaconWinslow and Katherine DrummondDonald EllermannW. Denr GitcheiJudith GrayRoberta Groninger

Dean W GudgeCyril and Betsy HollingsworthMartha HueyRaben L. Jones, Jr.Jerry and Carolyn JulianCarmen MarriottWilliam A. Martin

Mr. and Mrs. Geotge McClain

Plastiras Law FirmBarbara PollackLucretia H. RansickScott and Myra RansickMe. Ben E. Rice, Rice Law FirmDennis and Jane ShacklefordDavid SolomonJudge John and Marierra SrroudBarbara TarkingtonDr. Roberr R. Wrighr and Judge Susan

Webber WrightPaul and Marcella YoungZick, Ransick, Julian, Weiss &

Associates, Inc.

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

Compton

IN MEMORY OF PEG SMITHStephen EngstromWilliam A. MartinDr. Raben R. Wright and Judge Susan

Webber Wright

IN MEMORY OF MRS. MARGRETWYNNE

Martha Huey

HONORARIUMS

IN HONOR OF MARK GRAYJudge William R. Wilson, Jr. and Cathi

Compton

IN HONOR OF DAVlD SOLOMON

Miriam, David, Rayman, Lafe, Nancy,Carol, Cam, Hannah, Catherine, Will,

Claire and Jess Solomon

SCHOLARSHIPS

Wilson & Associates, PLLC

to the

106th Arkansas Bar

Association Annual Meeting

If you only attend one

meeting all year, make it

this one.

Mark Your Calendar

Now

for the Arkansas Bar

Association, Arkansas

Judicial Council

Joint Annual Meeting.

June 9 -12, 2004

Arlington Hotel

Hot Springs,

Arkansas

Vol. 38 No. 4/Fall 2003 TI,e Arbnsas Lawyer 37

President's Report from page 3

and federal district cases at the same time),the phrase: "and (history includesarkansas)" works even hetter. (Within theFederal Appeals Court database, the fieldcalled "history" comains the name of thediscricr court from which me appeal is

taken.)OUf next tip was developed at the sug­

gestion of Association Governor BobYoung of Paragould. Bob noted that, whileArkansas VersusLaw searches the Arkansas

Code and finds any statutes matching thesearch criteria, it does not Facilitate brows­

ing the Arkansas Code irself. The fIX issimple. From the Association's web pageclick "law links." From that sub-menu

click "Arkansas Code." Shazam! A fully

browsable version of the Code is at yourservice. The Code has opened in a newwindow. If you minimiz.e iliar window(click on cute little «_.. sign), you are back

at me Association's website. ready ro enterArkansas VersusLaw. When you find a

statute in response to your ArkansasVersusLaw query. reopen that minimizedCode window and browse the vicinity of

the statute which Arkansas VersusLawfound for you.

Today's final tip comes from Finis

Batchelor of Van Buren. Finis usesArkansas VersusLaw to produce electronicadvance sheets of Arkansas decisions. (We

have modified his procedure to make it also

wotk on Eighth Circuit cases.) The trick isto date-limit the search. For example. if itis Monday and you want to know about

cases decided the previous week. fill in the"from" date on the date-limiter with thepreceding 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 "historyincludes arkansas" along with your date­limiter.

If you have a suggestion for "Arkansas

VersusLaw Tips and Tricks" we would liketo hear from you. Send it. via email, co

thicks@arkbar.com. We will publish themas space allows.•

38 The Arkansas La""e, www.arkbar.com

Tort from page 28

212 (Michie Supp. 2003).2. Ark. Code Ann. § 16-55-201. These

provisions concerning fault allocationdo not apply to actions not involvingpersonal injury or property damage,for example. actions based on theoriesof defamation, privacy violation, tres­pass. nuisance. illterference with con­tractual relationships. malicious prose­cution. deceit, conversion. nonmedicalprofessional malpractice, or unfaircompetjtion. See id. § 16-55­201 (a).Whether the new provisions onfault allocation apply to claims of out­rage. breach of warranty. false impris­onment. and other theories borderingon personal injury may depend on thefacts of individual cases and willrequire judicial interpretation.

3. Robert B LeAat, Th, Civil jrmictR,ftrm Ace and lh, Empty Chair, 2003Ark. L. Notes 67.

4. ARK. CODE ANN. § 16-55-202(a).5. ld. § I6-55-202(b).6. Defendants setding out before trial

could also receive fault allocations, asallowed under current Arkansas prac­tice. See id. § 16-55-202(b)(I); HenryWoods & Beth Deere, ComparativeFault § 13:15 at 285-86, § 13:19 at300-01 (3d ed. 1996).

7. ARK. CODE ANN. § 16-55-201(a).8. !d. § 16-55-205(a).9. ld. § 16-55-16-55-205(b)(I) (empha­

sis added).10. td. § 16-55-203. These reallocations

apply only to compensatOry. not puni­tive, damages. !d. § 16-55-203(1).

II. See, ~.g., Advocat. Inc. v. Sauer. _Ark.~ III S.w3d 346 (Ark. 2003)($63 million punitive award againstcorporate owner of Mena nursinghome, reduced by two-thirds bySupreme Court shortly after conclu­sion of legislative session).

12. Unlike other sections of the new law,which contain explicit limitations ontheir scope of application, see ARK.CODE ANN. § 16-55-20 I (virtuallyabolishing joint liability in personalinjury and property damage cases only)and § 16-55-213 (remicting venue inspecified classes of cases, not limited to

personal injury and property damagecases), the punitive damage sectionscontain no such limitations. See §§ 16­55-206 to -211.

13. S" ARK. MODEL JURY INSTRUCfIONS(Civil) 2218 (4th ed. 1999) (formerlyAMI 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); Renfrov. 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 bewithin 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 tortactions, and these rules permit claimsto be brought whete the plaintiffresides. where an defendant individualresides or where a defendant entity hasits principal place of business. or where"a substantial part of the events oromissions giving rise to the claimOCCUtS." Jd. § 16-55-213(a). However,actions for medical injury are explicitlyexcluded from the operation of thisprovIsion.

23. !d. § 16-114-206(a)(l) & (2).24. Catheyv. Williams, 290 Ark. 189,718

S.w2d 98 (1986).25. Su ARK. CODE ANN. § 16-114­

206(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) (emphasisadded).

30. Montgomery Ward & Co. v.

Anderson, 334 Ark. 561, 976 S.W2d382 (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 formedical directors of nursing homesagainst liability reallocations, § 16-55­204; and tolling of the statute of limi­tations under certain conditions inmedical injury actions, § 16-1 14 212.

33. Su, ~.g., Leflar. supra note 3.

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indeed challenging to the Associationand to lawyers, and we expect thetrend to continue. You can help ourcause by getting to know your home­town legislators and lending themassistance as they deal with the oftendifficult issues confronting them. Andyou are always encouraged to placeyour hat in the ring. Finally, pleaseread the accompanying article on theLegislation Committee. During thecourse of the session we had manyinquiries regarding its function and itsworkings, and the article is an effort toanswer those questions.•

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