vol.38_no. 4_fall 2003
DESCRIPTION
Associate Executive Director Judith Gray James M. Simpson. Jr. James D. Sprott GRAPHIC DESIGN Leigh M. Chiles Milton Fine, [] Morton Gitelman EDITORIAL BOARD Philip E. Kaplan,. Chair Homepage: www.arkbar.com E-Mail: [email protected] Vol. 38. NO 4 Eddie Walker Robert E. Young PUBLISHER Don Hollingsworth Carolyn 8. Wothe"J'OOO UAISON MEMBERS J. Leon Holmes BOARD OF GOVERNORS ly by the Atb.nNs au Association. Periodicals po6Qge Judge WLiey A. Branton, Jr. Steve Bingham Robert "Skip" HenryTRANSCRIPT
PUBLISHERArkonsas Bar AssociationPhone: (501) 375-4606
Fax: (501) 375-4901Homepage: www.arkbar.com
E-Mail: [email protected]
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: [email protected]
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 - [email protected] ,
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, [email protected], 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
Alcohol & Drug Abuse or AddictionDepression & Other Mental Health Issues
Physical DisabilitiesAging Issues
Confidential Phone 501.907.2529Confidential Email [email protected]
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
and
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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 [email protected],
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 [email protected]
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-
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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
-
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-
-
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
-
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
Forr Smirh, AR
BANKRUPTCY REPRISE
November 21, 2003Clarion Inn
Fayetteville, AR
CLE & DUCK HUNTING
(Fifth District)December 5, 2003
Phillips Co. Communiry CollegeStuttgart
MID-YEAR MEETING
January 22-24, 2004The Peabody Horel
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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, [email protected] 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;[email protected] l. Schwartz
the defendant took Chapter 7 bankruptcy after
the suit was dismissed, precluding any rcfiling_
Certified Public Accountant (CPA), Master Certified Business Appraiser (MCBA), Accredited SeniorAppraiser (AS A), Accredited in Business Valuations (ABV), Certified Fraud Examiner (CFE)
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
INC500 President Clinton Avenue, Museum Center, River Level
Little Rock, AR 72201501-376-2121
1104 South Walton Blvd., Suite 8, Bentonville, AR 72712479-271-2237
423 Rogers Avenue, Suite 101, Fort Smith, AR 72902479-783-1776
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
[email protected]. 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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