Volume 78 ◆ No. 21 ◆ August 4, 2007

ALSO INSIDE •Bar Center Building Renovations Begin •Recent Events Photo Highlights Calendar of Events OBA CLE Seminars

AUG. 31 – TULSA SEPT. 26 – OKC Appellate Practice: Things You Always The New Lawyer Experience: Hit the Wanted to Know But Were Afraid to Ask Ground Running Co-sponsored with the OBA Management 6 hrs. of MCLE credit, including 1 hr. of Assistance Program; This course is not ethics; Crowne Plaza Hotel, 100 E. 2nd St. eligible for mandatory CLE credit. This is SEPT. 6 – TULSA an informational course.; Oklahoma Bar Center, 1901 N. Lincoln Blvd. How to Find the Courthouse: A Framework for Young Lawyers SEPT. 27 – OKC Co-sponsored with the OBA Young Law- yers Division; 6 hrs. of MCLE credit, Powerhouse Communication Tools for including 1 hr. of ethics; Crowne Plaza Today’s Women Lawyers: The 2007 Women in Law Conference Hotel, 100 E. 2nd St. Co-sponsored with the OBA Women in Law Committee; 6 hrs. of MCLE credit, SEPT. 7 – OKC including .5 hrs. of ethics; The Skirvin How to Find the Courthouse: A Hotel, One Park Ave. Framework for Young Lawyers Co-sponsored with the OBA Young Law- SEPT. 27 – OKC yers Division; 6 hrs. of MCLE credit, The Women Lawyers Club including 1 hr. of ethics; Oklahoma Bar Co-sponsored with the OBA Women in Center, 1901 N. Lincoln Blvd. Law Commitee, the OBA Litigation Section and Periaktos Productions; 3 hrs. SEPT. 14 – TULSA of MCLE credit, including 0 hrs. of ethics; The Skirvin Hotel, One Park Ave. Back to Basics - Updated Family Law from A - Z SEPT. 28 – TULSA Co-sponsored with the OBA Family Law Section; 6 hrs. of MCLE credit, including The New Lawyer Experience: Hit the 2 hrs. of ethics; Crowne Plaza Hotel, 100 E. Ground Running Co-sponsored with the OBA Management 2nd St. Assistance Program; This course is not SEPT. 21 – OKC eligible for mandatory CLE credit. This is an informational course.; Crowne Plaza Back to Basics - Updated Family Law Hotel, 100 E. 2nd St. from A - Z Co-sponsored with the OBA Family Law Section; 6 hrs. of MCLE credit, including 2 hrs. of ethics; Oklahoma Bar Center, Check registration 1901 N. Lincoln Blvd. times at SEPT. 21 – TULSA www.okbar.org The Trial of an Employment Case 6 hrs. of MCLE credit, including 0 hrs. of You may register ethics; Crowne Plaza Hotel, 100 E. 2nd St. online at www.okbar.org or call 405.416.7006 August & September

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1913 1914 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 DEPARTMENTS THEME: 1916 From the President HEALTH LAW 1977 From the Executive Director Editor: Martha Rupp Carter 1979 Law Practice Tips 1982 Ethics/Professional Responsibility 1984 OBA Board of Governors Actions 1987 Oklahoma Bar Foundation News contents 1990 Access to Justice August 4, 2007 • Vol. 78 • No. 21 1992 Young Lawyers Division 1995 Calendar 1997 For Your Information 2001 Bench and Bar Briefs 2006 In Memoriam 1978 Editorial Calendar 2016 The Back Page pg. 1971 Award nominations pg. 1919 PLUS 1970 Bar Center Building FEATURES Renovations Begin 1919 Walking Your Client through 1971 OBA Award Nominations an Advance Directive for Due Aug. 13 Health Care 1972 Photo Highlights: 1925 The Hydration and Nutrition for Sovereignty Symposium XX Incompetent Patients Act 1974 Photo Highlights: Solo and 1931 The Paradox of ‘Emergency Small Firm Conference Preparedness’ 1975 Board of Governors 2008 1943 HIPAA Rules All Lawyers Vacancies Should Know 1951 Blanket Medical Releases and Client Privacy 1957 Stark for Beginners: An Introduction to the Federal pg. 1970 Physician Self-Referral Law Renovations Begin 1967 When Silence is Deadly

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1915 FROM THE PRESIDENT

So Much to Do and So Little Time to Do It By Stephen Beam

I don’t know about you, but to me the first based on what we are doing. Other half of this year has just flown by. Just because the professional groups have shown an Oklahoma Bar Journal hasn’t been published lately, doesn’t interest in our program, as well. I mean the Oklahoma Bar Association hasn’t been busy. I know our efforts in this area have want to let you know a few of the things that have been saved lives. going on these past few months, and a few things that will take place in the next few months. The American Bar Association is presenting us with an award for our I am excited to announce that Ben Stein will be coming outstanding Law School for Legisla- to the Annual Meeting in November. Mr. Stein tors program at the ABA will be our featured speaker at the annual Annual Meeting in San luncheon on Nov. 8. The plenary session on Francisco in August. Thursday morning is called “Wrongful Con- victions: Isolated Events or System Failures?” The Board of Gover- Tulsa attorney Alan Smallwood will moderate The OBA nors will receive reports a panel discussion featuring Innocence Project from the Advertising Policy Director Stephen Saloom, Mark Barrett, has been Task Force headed by Oklahoma County District Attorney David very busy Jack Dawson, Mentor- Prater, Dennis Fritz and Christy Shepherd. ing Task Force led by Melissa DeLacerda, Myra Kaufman and Debra indeed. John Parsley, Commu- Charles have worked tirelessly this entire year nications Task Force of to make this meeting a success. I think you Melissa DeLacerda and will be pleased by the new additions to the the State Legal Refer- Annual Meeting format. ral Service Task Force chaired by Ditmar Cau- The 10th Annual Solo and Small Firm Conference dle at the August meeting. You will in June was a huge success. Roger Reneau and Chris Hen- learn more about the reports of those thorn head the committee that puts on this conference and task forces and their recommenda- deserve a great deal of the credit. The conference featured tions over the next few months. law office management guru Jay Foonberg. He is one of the best speakers we have ever had at the conference. About The Young Lawyers Division pro- 200 lawyers and 400 people total, including families, gram, Wills for Heroes, has gotten attended this conference. These attendance figures set off the ground in a big way. I want new records. to thank Gable Gotwals for donat- ing laptops and printers for use in Linda Thomas and the Leadership Conference this important project. Training ses- Task Force have almost completed planning for this sions are underway, and the first will August event. We received more than 250 nominees signing has taken place at the Yukon for the conference, and we identified 55 new leaders Fire Department. The goal of this who will receive leadership training. Featured speak- program is to provide wills free of ers are Mike Turpin and Lt. Gov. Jari Askins. This charge for all law enforcement per- should be a wonderful event and infuse the OBA sonnel and firefighters. with new leadership talent for years to come. As you can see, the OBA has been My January President’s Message focused on the very busy indeed. There are more mental health issues we are having. I am pleased to surprises in store for the rest of this announce the program started by the OBA received year. Please make plans to attend the President Beam the 2007 Mental Health Innovation Award from The OBA Annual Meeting in Oklahoma practices in Mental Health Association of Central Oklahoma as the City on Nov. 7 – 9. I promise you Weatherford. outstanding program of its kind. The South Carolina it will be the best Annual Meeting [email protected] Bar Association has implemented a similar program ever. (580) 772-2900

1916 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 OFFICERS & BOARD OF GOVERNORS Stephen D. Beam, President, Weatherford AUGUST J. William Conger, President-Elect, Oklahoma City Jack S. Dawson, Vice President, Oklahoma City 8 State Legal Referral Service Task Force Meeting; 1 p.m.; Oklahoma William R. Grimm, Immediate Past President, Tulsa Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Julie E. Bates, Oklahoma City Dietmar K. Caudle, Lawton Dietmar Caudle (580) 248-0202 Cathy M. Christensen, Oklahoma City 10 OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center, Donna L. Dirickson, Weatherford Oklahoma City and OSU Tulsa; Contact: Donelle Ratheal (405) 842-6342 Robert S. Farris, Tulsa Brian T. Hermanson, Ponca City 15 OBA Women in Law Committee Meeting; 12 p.m.; Oklahoma Bar Michael W. Hogan, McAlester Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Elizabeth R. Victor Kennemer III, Wewoka Joyner (918) 573-1143 Deborah A. Reheard, Eufaula Robert B. Sartin, Tulsa 16 OBA Bench and Bar Committee Meeting; 12 p.m.; Oklahoma Bar Alan Souter, Bristow Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Peggy Stockwell, Norman Brown (918) 581-8211 Christopher L. Camp, Tulsa, Chairperson, OBA Work/Life Balance Committee Meeting; 12 p.m.; Oklahoma Bar OBA/Young Lawyers Division Center, Oklahoma City; Contact: Melanie Jester (405) 609-5280 BAR CENTER STAFF OBA Government and Administrative Law Section Meeting; John Morris Williams, Executive Director; Dan Murdock, General Counsel; Donita Bourns 1:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Kevin Nelson Douglas, Director of Educational Programs; (405) 620-0547 Carol A. Manning, Director of Public Information; 22 OBA Diversity Committee Meeting; 3 p.m.; Oklahoma Bar Center, Craig D. Combs, Director of Administration; Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Linda Gina L. Hendryx, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Rick Samuel-Jaha (405) 290-7030 Loomis, Director of Information Systems; Beverly S. 23 OBA Legal Intern Committee Meeting; 3 p.m.; Oklahoma Bar Petry, Administrator MCLE Commission; Jane Center, Oklahoma City; Contact: H. Terrell Monks (405) 733-8686 McConnell, Coordinator Law-related Education; Janis Hubbard, First Assistant General Counsel; 23-24 OBA Leadership Conference; Sheraton Hotel, One North Broadway, Loraine Dillinder Farabow and Janna D. Hall, Oklahoma City; Contact: Linda Thomas (918) 337-0947 Assistant General Counsels; Robert D. Hanks, 24 OBA Board of Governors Meeting; Sheraton Hotel, One North Senior Investigator; Sharon Orth, Ray Page and Dorothy Walos, Investigators Broadway, Oklahoma City; Contact: John Morris Williams ( 405) 416-7000 Nina Anderson, Manni Arzola, Jenn Barrett, Melissa Brown, Brenda Card, Sharon Dotson, Johnny Marie Floyd, Matt Gayle, Susan Hall, SEPTEMBER Suzi Hendrix, Misty Hill, Durrel Lattimore, 3 Labor Day (State Holiday) Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Sandy Neal, Tim Priebe, 7 OBA Awards Committee Meeting; 11 a.m.; Supreme Court Tracy Sanders, Mark Schneidewent, Dana Courtroom, State Capitol; Contact: Gary Clark (405) 385-5146 Shelburne, Laura Willis & Roberta Yarbrough Oklahoma Trial Judges Association Meeting; 12 p.m.; Oklahoma Bar EDITORIAL BOARD Center, Oklahoma City; Contact: Judge Barbara Swinton Editor in Chief, John Morris Williams News & Layout Editor, Carol A. Manning (405) 713-7109 Editor, Melissa DeLacerda, Stillwater 11 OBA Bar Center Facilities Committee Meeting; 9 a.m.; Oklahoma Associate Editors: Steve Barnes, Poteau; Martha Bar Center, Oklahoma City; Contact: Bill Conger (405) 521-5845 Rupp Carter, Tulsa; Mark Curnutte, Vinita; Luke Gaither, Henryetta; D. Renee Hildebrant, Oklahoma City; John Munkacsy, Lawton; Julia For more events go to www.okbar.org/news/calendar.htm Rieman, Enid; James Stuart, Shawnee and Judge Lori M. Walkley, Norman NOTICE of change of address (which must be in The Oklahoma Bar Association’s offi cial Web site: www.okbar.org writing and signed by the OBA member), unde- THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar liverable copies, orders for subscriptions or ads, Association. All rights reserved. Copyright© 2007 Oklahoma Bar Association. news stories, articles and all mail items should be The design of the scales and the “Oklahoma Bar Association” encircling the sent to the Oklahoma Bar Association, P.O. Box scales are trademarks of the Oklahoma Bar Association. Legal articles carried 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association (405) 416-7000 THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED FOUR TIMES A Toll Free (800) 522-8065 FAX (405) 416-7001 MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL, Continuing Legal Education (405) 416-7006 MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND BI- Ethics Counsel (405) 416-7083 MONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR General Counsel (405) 416-7007 ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA Law-related Education (405) 416-7005 73105. PERIODICALS POSTAGE PAID AT OKLAHOMA CITY, OK. POSTMASTER: Lawyers Helping Lawyers (800) 364-7886 SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX Mgmt. Assistance Program (405) 416-7008 53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIPTIONS ARE $55 PER YEAR EX- Mandatory CLE (405) 416-7009 CEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCIA- OBJ & Public Information (405) 416-7004 TION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEMBER SUBSCRIPTIONS ARE IN- Board of Bar Examiners (405) 416-7075 CLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN Oklahoma Bar Foundation (405) 416-7070 IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1917 1918 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Health LAW Walking Your Client through an Advance Directive for Health Care By Catheryn Koss

igh profile disputes over providing or withdrawing life- sustaining treatment have raised awareness of end-of-life Hissues among law practitioners and the general public. In response, many Oklahoma attorneys are now making advance directives for health care a regular part of the basic estate plan- ning or other legal services they offer clients.

WHO SHOULD COMPLETE AN ADVANCE the client the power to control what medical DIRECTIVE? treatment he or she will receive and who will represent and advocate for the client with Every adult (18 years or older) who has the regard to medical care. It will never be used to capacity to execute an advance directive should override the client’s own wishes as long as he complete one. Even if your client already has an or she has capacity.5 advance directive, it should be updated using the new form enacted into law1 in May 2006. The client should also know that he or she While advance directives executed prior to can revoke an advance directive at any time. the 2006 changes are still valid,2 the new form While a person must be “of sound mind” to gives the declarant more options and applies to execute an advance directive,6 revocation is a broader range of medical situations3. possible regardless of mental capacity.7 Revo- cation is effective once an attending health ADDRESSING CLIENTS’ CONCERNS care provider is informed of the revocation Clients are often reticent about completing by either the declarant or a witness to the advance directive forms. While no one can or revocation.8 should be forced to execute an advance direc- Even if the patient declines life sustaining tive, the following information may address treatment, he or she will still receive medi- some clients’ concerns and encourage them to cation and treatment to alleviate pain.9 The complete the form. patient will also be provided with food and Explain to your client that an advance direc- water orally if medically possible.10 tive becomes operative only when he or she is Finally, a client should understand that incapable, according to the attending physician an incompetent patient is presumed to have and another physician, of making or com- directed health care providers to administer municating informed decisions regarding the life-sustaining artificial hydration and nutri- administration of life-sustaining treatment.4 In tion.11 This presumption applies even if the such a situation, the advance directive gives

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1919 patient is terminally ill or in a permanent veg- s An end-stage condition, meaning an etative state. Executing an advance directive untreatable condition such as Alzheimer’s overcomes this presumption and allows the disease that causes severe and permanent declarant to decide for him or herself. (I have deterioration resulting in incompetency seen several reluctant people change their and complete physical dependency. minds about filling out advance directives For each condition, the declarant can elect based on the thought of politicians making the to have all life-sustaining treatment adminis- decision for them.) tered, decline all life-sustaining treatment or HELPING YOUR CLIENT DECIDE elect only artificial nutrition and hydration. WHETHER OR NOT TO RECEIVE Life-sustaining treatment is medical treatment LIFE-SUSTAINING TREATMENT administered for the purpose of prolonging life. Examples include dialysis (removal of The first section of the advance directive waste products from the blood) and medi- form allows the declarant to elect or decline cal ventilation (use of an artificial breathing life-sustaining treatment in advance if he or machine). Life-sustaining treatment does not she is ever faced with any of the following include pain management or comfort care. medical conditions: Artificial nutrition and hydration is treatment administered when a patient is no longer able s A terminal condition, meaning one that to eat or drink by mouth. Sometimes referred is incurable and irreversible. A patient’s to as “tube feeding,” artificial nutrition and attending physician and another physician hydration is an invasive medical procedure must certify that, even if medically treated, that can cause serious side effects including the condition will cause death within six infection, cramps, bloating and pneumonia. months. Deciding whether to receive life-sustaining s A persistently unconscious state, mean- treatment ultimately involves reflecting on ing the patient has no awareness of self what makes life worth living. Each person’s or surroundings. The patient cannot feel values and wishes are unique; there is no hunger, thirst or pain, can only make “right” answer. When discussing these issues involuntary movements, and will never with your client, you may want to ask whether regain consciousness. he or she would want life-sustaining treatment in the following situations: s If he or she could no longer communicate or recognize loved ones? s If he or she were bedridden and required 24-hour care? s If he or she were in severe pain and dis- comfort most of the time? One advantage of the new advance directive form is that information regarding quality of life may be included in the “Other” section to

Deciding whether to receive life-sustaining treatment ultimately involves reflecting on what makes life “ worth living. 1920 The Oklahoma Bar Journal Vol. 78 — No. 21 — ”8/4/2007 inform health care providers and health care cal decisions for an incapacitated patient, not proxies of the declarant’s unique definition of just decisions about life-sustaining treatment. what makes life worth living. What clients may Some considerations to discuss with your want to include in this section is discussed in client when selecting a health care proxy more detail below. include: WRITING SPECIFIC INSTRUCTIONS s Is this person at least 18 years old and The advance directive form provides space competent? where the declarant may include specific s Is the person willing to serve as a health instructions such as: care proxy? s Pain Management: The declarant can s Will the person be available if needed? authorize the administration of pain medi- cation without regard to risk of addiction s Does the person understand the declar- or side effects that may hasten death. ant’s values and wishes and will he or she be emotionally able to carry them out? s Religious Preferences: Clients may want to include specific instructions in accor- s Is this someone the declarant trusts abso- dance with their faiths. For example, a lutely? Jehovah’s Witness may refuse all blood s transfusions. Language tailored to dif- Will the person be able to ask questions of ferent beliefs can be found on numerous healthcare providers and advocate for the religious Web sites. declarant? s Pregnancy: If a woman is pregnant, she If one of the health care proxies is around will be provided with life-sustaining treat- the same age as or older than the declarant, ment, including artificially administered you should suggest that the other proxy be sig- hydration and nutrition, unless she speci- nificantly younger in case the older health care fies in her own words that such treatment proxy predeceases the declarant. Although is to be withheld or withdrawn even if some clients may wish to do so, generally pregnant.12 it is not a good idea to name the declarant’s minister/religious advisor, doctor or attorney s Particular Procedures: The declar- unless that person is also a close friend or fam- ant can authorize or refuse particu- ily member. lar medical procedures or treatments such as surgery, antibiotics or dialysis. Sometimes clients may choose a health care proxy based on what they think others would s Other Circumstances: The declarant may want. For example, a client may say, “I think be able to give the health care proxy my son knows me better, but I should choose broader authority to make decisions about my daughter because I don’t want to hurt her life-sustaining treatment in situations feelings.” Encourage your clients to base their not addressed elsewhere in the form by decisions on what is best for them, not on what including language such as, “I authorize others may think or want. my health care proxy to elect to with- hold or withdraw life-sustaining treat- ANATOMICAL GIFTS ment, including artificial hydration and The third section of the advance directive nutrition, if he/she determines that any form gives the declarant the option to donate possible benefit of such treatment would his or her entire body or designated body be substantially outweighed by the likely parts. If your client wished to donate his or her detrimental side effects.” body to a medical school or research facility, CHOOSING A HEALTH CARE PROXY arrangements for such a donation should be made ahead of time. Generally, a person can- The second section of the advance directive not be both an organ donor and donate his or form allows the declarant to designate a health her body to science. care proxy and alternate health care proxy who will make medical decisions if the declarant is There are thousands of people on organ incapacitated. The new advance directive form transplant waiting lists. Each donor will be allows the health care proxy to make all medi- evaluated for suitability when the time comes, and there is no set age limit. Some medical

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1921 conditions will likely make a potential donor the Web sites of several organizations, includ- ineligible, including HIV/AIDS, active cancer ing the Oklahoma Bar Association,13 Senior or systemic infection. Law Resource Center,14 and Oklahoma Pallia- tive Care Resource Center15 (English, Spanish Organ and tissue donation will only occur and Vietnamese forms available). after death, defined as either the point at which all circulation and breathing functions The Oklahoma Palliative Care Resource Cen- have permanently stopped or when all brain ter,16 an excellent online source for Oklahoma- function, including the brain stem, have per- specific information about end-of-life issues, manently stopped. Being an organ donor will also provides links to articles, organizations in no way affect the medical care a patient and pertinent Oklahoma law. receives while alive. The patient’s survivors More information, including a written exer- will never be billed for the costs associated cise designed to help a person make end-of-life with organ donation. An organ donor can still decisions, can also be found on the Incapac- have an open casket and be buried. If relevant, ity and End-of-Life Planning section of the a client should check with his or her physician Oklahoma Senior Law Resource Center’s Web to determine whether a direction to donate site.17 organs would be compatible with a wish to die at home rather than in a medical facility. 1. 63 O.S. § 3101.4 (2006) 2. 2006 OK AG 32 (2006) MAKING SURE YOUR CLIENT’S WISHES 3. The Living Will section of the old form (63 O.S. §3101.4 (2004), superseded) only applied to patients who were either terminally ill or ARE KNOWN AND HONORED persistently unconscious. The Living Will section of the current form applies to those two situations as well as to patients who have an Once a client completes an advance direc- “end-state condition.” 63 O.S. § 3101.4 (2006) tive, he or she should keep a copy in an easily 4. 63 O.S. § 3101.5(A) (2006) 5. 63 O.S. § 3101.8(A) (2006) accessible place. EMS personnel are trained 6. 63 O.S. § 3101.4(A) (2006) to look for documents on refrigerators and in 7. 63 O.S. § 3101.6(A) (2006) 8. Id. glove compartments. Copies should also be 9. 63 O.S. § 3101.8(B) (2006) given to your client’s primary care physician 10. Id. 11. 63 O.S. § 3080.3 (2006) and to each named health care proxy. You, as 12. 63 O.S. § 3101.8(C) (2006) the attorney, should also keep a copy in the 13. www.okbar.org/public/brochures/AdvDirective2006.pdf client’s file. (Home page www.okbar.org) 14. www.charityadvantage.com/Senior_Law_Resource_ CenterGEYIDZ/AdvanceDirectiveforHealthCare.doc Other documentation that may be useful (Home page www.OklahomaSeniorLaw.org) include a list of everyone who has a copy of the 15. http://okpalliative.nursing.ouhsc.edu/ 16. Id. advance directive and a card to be carried in a 17. http://charityadvantage.com/Senior_Law_Resource_Center- purse or wallet indicating that the patient has GEYIDZ/IncapacityandEndofLif.asp an advance directive, where it can be found and the contact information for his or her primary care physician and health care ABOUT THE AUTHOR proxies. CONCLUSION Catheryn Koss is the found- er and executive director of Completing the advance directive form is the Senior Law Resource only the first step. Encourage your clients to Center, a non-profit organi- discuss their wishes and instructions with their zation providing legal infor- physicians and loved ones. Addressing these mation and services to Okla- issues early, although sometimes difficult, can homa elders and caregivers. prevent conflict among family members and Ms. Koss graduated from give the decision-makers peace of mind in the OCU Law in 2005, where event of a medical crisis. she earned a certificate in Pre-printed advance directive forms can be public law. She is currently a Fellow with the ordered at no cost from the Oklahoma Depart- Borchard Foundation on Law and Aging. ment of Human Services, fax number (405) 962-1740. Forms can also be downloaded from

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Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1923 1924 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Health LAW The Hydration and Nutrition for Incompetent Patients Act: Oklahoma’s ‘Feeding Tube Forever’ Law By Retired Judge Janice P. Dreiling klahoma law regarding health care and advance direc- tives cannot be fully understood unless the law is read within the context of the “Hydration and Nutrition for O 1 Incompetent Patients Act,” hereinafter referred to as “HNA.”

HNA is the elephant in the room in any The purpose of this paper is to present the discussion of “end-of-life” care in Oklahoma. HNA by analyzing the above presumption and There is no case law to date that interprets its exceptions, the terms and definitions neces- HNA. And, there are no similar statutes in the sary to understand HNA, the 2006 Oklahoma other 49 states. Advance Directive Act’s treatment of artifi- cially administered nutrition and hydration, THE “PRESUMPTION” OF THE some related statutes and current facts about OKLAHOMA HYDRATION AND feeding tubes. NUTRITION FOR INCOMPETENT PATIENTS ACT WHAT ARE THE EXCEPTIONS? WHEN IS THE PRESUMPTION INAPPLICABLE? Originally enacted in 1987, HNA is relatively short, barely filling four pages in the Oklaho- In plain English, HNA requires a “feeding ma Statutes Annotated. The crux of the HNA tube forever” for every Oklahoman who does is the following presumption: “It shall be not meet one of the following five statutory presumed that every incompetent patient has exceptions. directed his health care providers to provide Exception 1) “The attending physician of the him with hydration and nutrition to a degree incompetent patient knows that the patient, that is sufficient to sustain life.”2 when competent, decided on the basis of infor- This “presumption” makes every Oklaho- mation sufficient to constitute informed con- man a potential Terri Schiavo.3 sent that artificially administered hydration or artificially administered nutrition should be There have been no substantive amendments withheld or withdrawn from him.”5 since HNA was passed into law 20 years ago. Exception 2) “A court finds by clear and Nutrition is defined as “sustenance admin- convincing evidence that the patient, when istered by way of the gastrointestinal tract.” competent, decided on the basis of information Hydration is not otherwise defined.4 sufficient to constitute informed consent that artificially administered hydration or artificial-

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1925 If you are a minor or an otherwise incompetent adult, there is no way to “ensure against becoming a Terri Schiavo.

ly administered nutrition should be withheld for exceptions one and three to overcome the or withdrawn.”6 presumption. Exception 3) An advance directive has been Exception one contemplates a relationship executed pursuant to the Oklahoma” Natural between an adult patient and his/her physi- Death Act, the Oklahoma Rights of the Ter- cian during which there has been at least a minally Ill or Persistently Unconscious Act, or memorable conversation in which the patient the Oklahoma Advance Directive Act specifi- clearly communicated to the physician his/her cally authorizing the withholding or withdrawal of intention that artificial hydration and nutrition nutrition and/or hydration.7 (emphasis added) “sufficient to sustain life” not be administered under certain circumstances after the patient Exception 4) “In the reasonable medical can no longer communicate. In other words, judgment of the incompetent patient’s attend- the patient has communicated his/her inten- ing physician and a second consulting physi- tion not to have a feeding tube. cian, artificially administered hydration or artificially administered nutrition will itself Exception three allows for the presumption cause severe, intractable, and long-lasting pain to be overcome if and only if the patient has to the incompetent patient or such nutrition or executed an advance directive that specifically hydration is not medically possible.”8 authorizes the withholding or withdrawal of nutrition and/or hydration. An advance direc- Exception 5) “In the reasonable medical tive form executed pursuant to any of the three judgment of the incompetent patient’s attend- Oklahoma acts providing for an advance direc- ing physician and a second consulting physi- tive is enough, assuming the advance directive cian: (a) the incompetent patient is chronically addresses the withholding or withdrawal of and irreversibly incompetent, (b) the incompe- nutrition and/or hydration in specific and sep- tent patient is in the final stage of a terminal arate words.11 It is not enough for an advance illness or injury, and (c) the death of the incom- directive to use the words “life-sustaining petent patient is imminent.”9 treatment” if artificial hydration and nutrition As long as HNA is the law in Oklahoma, are not separately addressed. the only way a competent adult can ensure Exception two anticipates litigation and per- against the possibility of being a Terri Schiavo mits a finding by a court that would overcome is to execute an advance directive specifically the presumption. Obviously, the adult patient, authorizing the withholding or withdrawal of while competent, had to have communicated artificial hydration and nutrition under certain with at least someone that he/she would circumstances. not want a feeding tube under certain If you are a minor or an otherwise incompe- circumstances. tent adult, there is no way to ensure against Exception four contemplates two physicians becoming a Terri Schiavo. Only a competent concluding that the administration of artificial person 18 years of age or older may execute an hydration and nutrition is not medically pos- advance directive.10 sible or would cause long-lasting pain. An HNA makes it necessary for an adult, while example would be a patient who is extensively competent, to take affirmative action in order and severely burned.

1926 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Finally, exception five requires two physi- attending physician, is unable to make deci- cians to conclude and agree that the incom- sions affecting medical treatment or other petent patient cannot regain competency, and health care services.” the patient is in the “final stage” of a terminal The above definition includes all persons illness or injury, and that death is under 18 years of age and all adults under “imminent.”12 general guardianship. It would likely include To summarize, HNA’s presumption can some adults under limited guardianship as only be overcome if the patient has executed well as certain adults who have been adjudi- an advance directive specifically authorizing cated an “adult in need of protective services.” withdrawal or withholding of a feeding tube And, it includes any adult found by his/her OR if the patient has successfully communi- attending physician to be unable to make cated his/her wishes to withdraw or withhold medical or health care decisions. to a physician willing to honor those wishes It is noteworthy that 63 O.S. 3080.2(4)(c) OR a court finds by clear and convincing evi- allows an adult patient’s attending physician dence the patient expressed such wishes to alone to decide if and when the patient is others OR administration of the feeding tube unable to make medical or health care deci- is medically impossible (or will cause severe sions. Thus, the attending physician alone permanent pain) OR the patient cannot regain determines whether the patient is an “incom- competency and death is imminent. petent patient” pursuant to HNA. The attend- To the extent an adult has neither executed ing physician alone determines whether the an advance directive specifically authorizing patient is subject to the presumption of HNA. withdrawal or withholding of the feeding tube In contrast, the Advance Directive Act nor communicated such wishes to a physician requires the attending physician and another or to others, the legal presumption is “feeding physician to determine the patient is no lon- tube forever” unless the feeding tube is medi- ger able to make decisions regarding medical cally impossible OR death is imminent. treatment. If two physicians make that deci- If the presumption and its exceptions were sion, the patient becomes a “qualified patient” not abundantly clear as to HNA’s statutory whose advance directive would then go into intent, 63 O.S. 3080.5(C) (the last section of effect.14 HNA) expands and underscores HNA’s intent WHO/WHAT IS A “HEALTH CARE by the following statement: “No guardian, PROVIDER” UNDER OKLAHOMA LAW? public or private agency, court, or any other person shall have the authority to make a deci- HNA’s “presumption” directs “health care sion on behalf of an incompetent patient to providers” to provide incompetent patients withhold or withdraw hydration or nutrition with “hydration and nutrition to a degree that from said patient except in the circumstances is sufficient to sustain life.” But, HNA contains and under the conditions specifically provided no definition of “health care provider.” for in Section 3080.4 of this title” (that being the The 2006 Advance Directive Act defines section covering the above five exceptions). “health care provider” as follows: “a person Current literature regarding advance direc- who is licensed, certified, or otherwise autho- tives estimates that 80 percent of the adult rized by the law of this state to administer population does not have an advance direc- health care in the ordinary course of business tive.13 If such estimates are accurate and HNA or practice of a profession.”15 is enforced by health care providers, one can Oklahoma’s Do-Not-Resuscitate Act, enact- only imagine the staggering number of Okla- ed in 1997, defines “health care provider” homans who are potentially impacted. as “any physician, dentist, nurse, paramedic, WHO IS AN “INCOMPETENT PATIENT?” psychologist, or other person providing medi- cal, dental, nursing, psychological, hospice, or HNA’s “presumption” includes “every other health care services of any kind (emphasis incompetent patient.” 63 O.S. 3080.2(4) defines added).”16 “incompetent patient” as “any person who is a minor, or has been declared incompetent to Clearly, a “health care provider” under Okla- make decisions affecting medical treatment homa law includes a wide range of profession- or care, or in the reasonable judgment of the als and other persons who are employed by

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1927 businesses and health care agencies for the pur- OTHER RELATED STATUTES pose of providing medical care and treatment. There are other statutes which relate to HNA Among these are nursing home administrators which raise questions. and their employees. In the Guardianship and Conservatorship Act, THE 2006 ADVANCE DIRECTIVE ACT AND 30 O.S. 3-119 limits the powers of a guardian. ARTIFICIALLY ADMINISTERED NUTRI- It states “no guardian shall have the power to TION AND HYDRATION consent on behalf of the ward to the withhold- Artificially administered nutrition and hydra- ing or withdrawal of life-sustaining procedures tion were recognized by the U.S. Supreme Court as defined by the Oklahoma Rights of the Termi- as a form of medical treatment in Cruzan v. nally Ill or Persistently Unconscious Act from the Director, Missouri Department of Health in 1990.17 ward.” There are three exceptions to that prohi- The language in the 2006 Oklahoma Advance bition. The first requires a guardian to obtain Directive Act includes artificially administered “specific authorization of the court having juris- nutrition and hydration as a life-sustaining diction over the guardianship proceedings” in treatment. Specifically, the prescribed advance order for the guardian to authorize withdrawal directive form in the 2006 act repeatedly uses the or withholding of life-sustaining treatment. The language “life-sustaining treatment, including guardian is required to make application to the artificially administered nutrition and hydra- court for a separate order “only at such time tion.” when the ward is in need of life-sustaining treat- ment.” The second exception allows a guardian The Oklahoma Advance Directive Act renamed to enforce the advance directive of the ward, and amended the previous Oklahoma Rights of if the ward had executed an advance directive the Terminally Ill and Persistently Unconscious while competent. The third allows a guardian Act. Curiously, one of the amendments elimi- to enforce a do-not-resuscitate order. nated the definition of “life-sustaining treat- ment.” Prior to the Advance Directive Act’s effective date in May 2006, the older act defined “life-sustaining treatment” as follows: “Any The guardian is medical procedure or intervention, including but not limited to the artificial administration required to make of nutrition and hydration if the declarant has specifically authorized application to the court the withholding and withdrawal of artifi- for a separate order… cially administered nutrition and hydra- “ tion, that when admin- istered to a qualified patient, will serve Section 3-119 needs to be amend- only to prolong the ed to recognize the 2006 Oklahoma process of dying or to Advance Directive Act and the fact maintain the patient in that the definition of “life-sustain- a condition of persistent ing procedures” no longer exists.” unconsciousness.” Nevertheless, absent an advance directive or The writers of the Oklahoma Advance Direc- a DNR order, the present law still prohibits a tive Act deleted the definition in its entirety. guardian from consenting on behalf of the ward Therefore, under current law, “life-sustaining to the withholding or withdrawal of life-sustain- treatment” has no definition. At a recent semi- ing procedures without going back to court at nar the explanation was offered by one of the the time the ward is in need of life-sustaining writers that by not defining the term, the con- procedures. Having presided over the probate cept could more easily include new medical docket in Washington County for over 20 years, technologies not presently known. In that the I do not recall a guardianship case in which a old definition used the words “any medical private guardian made application to the court procedure or intervention,” that explanation is for an order authorizing the withholding or difficult to understand. withdrawal of life-sustaining treatment for the

1928 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 ward. I am confident that life-sustaining treat- patients. And, as many as 10 percent of institu- ment, including artificial hydration and nutri- tionalized older patients are being tube fed.19 tion, was withdrawn or withheld in some of SUMMARY those cases at one time or another. But, there was no rush to the courthouse for permission. To ensure against a “feeding tube forever” in the future, a competent adult in Oklahoma The only cases in which I was asked to has to execute an advance directive specifically approve withholding or withdrawal of life-sus- authorizing the withholding or withdrawal of taining treatment, including artificially admin- artificially administered hydration and nutri- istered hydration and nutrition, were adult tion. Without such an advance directive, unless protective services cases in which the Depart- one of the other four exceptions to the HNA’s ment of Human Services was the guardian or presumption applies, Oklahoma law today in deprived child cases in which DHS had legal requires a feeding tube to sustain every incom- custody of the child. petent patient until the patient’s death. Another statute that raises questions is found in the “Protective Services for the Elderly and for 1. 63 O.S. 3080.1 – 3080.5. 18 2. 63 O.S. 3080.3. Incapacitated Adults Act,” otherwise known 3. Florida woman who was in a persistent vegetative state for over as the Adult Protective Services Act. It states: a decade and whose feeding tube was ultimately removed after special legislation in Congress required her case be reviewed in federal court. “Under no circumstances shall the court authorize She died in 2005. the Department (Department of Human Ser- 4. 63 O.S. 3080.2. 5. 63 O.S. 3080.4(A)(1). vices), pursuant to this subsection, to consent 6. 63 O.S. 3080.4(A)(2). or deny consent to a Do-Not-Resuscitate order 7. 63 O.S. 3080.4(A)(3)(4)(5). or the withdrawal of hydration or nutrition 8. 63 O.S. 3080.4(A)(6). 9. 63 O.S. 3080.4(A)(7). or other life-sustaining treatment although the 10. 63 O.S. 3101.4(A). court retains jurisdiction to hear such matters 11. The Oklahoma Advance Directive Act (63 O.S. 3101.1 et seq) became effective in May 2006, amending and renaming the Oklahoma under applicable law (emphasis added).” Rights of the Terminally Ill or Persistently Unconscious Act which was enacted in 1992 and which repealed the Oklahoma Natural Death A lot could be said about the wording of the Act. All three acts provide for advance directives. Advance directive above section of the Adult Protective Services forms prescribed by both of the older acts are still valid but limited to their terms. Act. I will limit my comments to three. One, by 12. Merriam-Webster’s Collegiate Dictionary, 11th Edition, defines the use of “withdrawal” and not “withholding,” “imminent” as “ready to take place.” 13. “Enough: The Failure of the Living Will,” Hastings Center does the statute contemplate that a court may Report, March-April 2004, Angela Fagerlin and Carol E. Schneider. authorize withholding life-sustaining treat- 14. 63 O.S. 3101.3(10). 15. 63 O.S. 3101.3(5). ment, including a feeding tube, but may not 16. 63 O.S. 3131.3(8). authorize withdrawal once the feeding tube is in 17. 110 S.Ct. 2841. place? Two, the statute is in direct conflict with 18. 43A O.S. 10-108(A)(2). 19. “To Peg or Not to Peg,” Geriatrics, June 1, 2006, by Frank A. existing statutory language in both the Advance Cervo, MD, Leslie Bryan, MD, and Sharon Farber, MD. Directive Act and the Do-Not-Resuscitate Act. “Under no circumstances” tells me that even if the adult involved has a previously executed ABOUT THE AUTHOR valid advance directive or “DNR order” that the court cannot honor it. Three, I respectfully Janice Parks Dreiling was suggest the language is in violation of the sepa- associate district judge, Wash- ration of powers. ington County, 1983 to 2003, when she became district THE USE OF FEEDING TUBES judge for the 11th Judicial According to a June 1, 2006, article in District. She was presiding Geriatrics, feeding tubes (percutaneous endo- judge for the Northeastern scopic gastrostomy tubes, commonly referred to Administrative District and as PEG tubes) are being placed in patients with chairman of the Assembly of increasing frequency. In 1989, 15,000 patients Presiding Judges in 2005 and in the U.S. were on PEG tubes; in 2000, there 2006. A graduate of Kansas State University were more than 216,000 patients on PEG tubes. and the University of Tulsa, Dreiling was past- According to the article, approximately 30 per- president of the Oklahoma Judicial Conference cent of all PEG tubes are placed in dementia and a member of the attorney general’s 2004 Advisory Committee on End-of-Life Care.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1929 1930 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Health LAW The Paradox of ‘Emergency Preparedness’: Can We Be Prepared for a Public Health Emergency? By Martha Rupp Carter n “emergency” is sudden, urgent, usually unexpected and requires immediate action.1 As such, preparing for Aone seems at least somewhat unlikely. The traumas of Toronto’s SARS epidemic, 9/11 and Hurricane Katrina cumulatively increased public awareness about how important public health preparedness is. Public health experts predict another global homans’ health and is the executive officer outbreak of a flu strain for which we have no of the State Department of Health.5 The com- immunity and no vaccine is inevitable in the missioner coordinates the State Department of near future. “Bird flu,” or avian H5N1 influ- Health’s activities with the federal government enza, is feared as this next pandemic.2 The six and other states and may accept and use their months needed to develop a vaccine once an grants of money, personnel and property for outbreak begins3 is certainly basis for alarm. public health and control of disease.6 Because a quick and ready vaccination fix will Oklahoma’s local level includes county boards not be available, implementation and enforce- of health, county health departments, county ment of public health measures are needed to superintendents of health, district departments endure and prevail. Who will implement those of health, cooperative departments of health, measures and manage such an emergency? governing boards of cities or incorporated According to Health and Human Services towns, city-county boards of health and city- Secretary Mike Leavitt, “When it comes down county departments of health. to managing the public health in a pandemic The office of county superintendent of situation, it will be up to local public health health is created for each county that does not authorities.4” An examination of Oklahoma’s maintain a county department of health public health structure and powers is thus and participate in maintenance of a district in order to understand the framework for department of health.7 The commissioner preparedness. appoints county superintendents who serve at THE FRAMEWORK: OKLAHOMA’S the commissioner’s pleasure.8 PUBLIC HEALTH STRUCTURE A county board of health, comprising five The Oklahoma State Commissioner of Health appointed members, is created in each county.9 is responsible for general supervision of Okla- Among other duties, a county board of health

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1931 must establish and maintain a county depart- GENERAL PUBLIC HEALTH DUTIES ment of health if in the best interests of the AND POWERS county.10 Funding for a health department may The matters on which the State Board of be provided from the county general fund and Health is authorized to adopt rules and regu- proceeds of a levy under the Oklahoma Con- lations are illustrative and include: recom- stitution at Article X, Section 9a.11 There are 69 mended immunization procedures; quarantine county health departments in Oklahoma.12 A measures; exclusion of children from school; county health department, or any district or regulation of public meetings and gatherings in cooperative department of health, is to operate epidemic situations; regulation of vectors; con- under the direction of a medical director. The trol of vehicles capable of transmitting a com- commissioner appoints and supervises medical municable disease; detection and diagnosis of directors.13 communicable disease; carriers of disease; dis- The governing board of every Oklahoma city posal of infected body wastes and other materi- and town is empowered to serve ex-officio as als; fumigation, cleaning and sterilization, and the board of health for the municipality. They disinfection; and other necessary measured to can appoint and fix the duties and compensa- prevent and control communicable disease.21 tion of a health officer and other personnel to The commissioner’s statutory duties enforce public health ordinances.14 The govern- include: ing boards may adopt public health ordinances and rules not inconsistent with State Board of 1) control, suppress, prevent the occurrence Health rules, and, they may also enforce laws or spread of communicable, contagious or and rules required by the commissioner.15 infectious disease; 2) segregate and isolate persons having or Oklahoma counties and cities of sufficient suspected of having such disease; populations may jointly create a city-county board of health,16 and, pursuant to an agree- 3) designate places of quarantine or isola- ment, a city-county health department; they tion; are authorized to provide for the department’s 4) abate any nuisance injurious to public operation and selection of a director.17 There health; are two city-county health departments, the 5) investigate and study causes of disease Tulsa City-County Health Department and the and epidemics, mortality and the effects of Oklahoma City-County Health Department. localities, employment, conditions and circum- Under the supervision of its director, a stances on the public health; city-county health department is to enforce 6) investigate conditions of health, sanitation and administer all municipal and county ordi- and safety of schools, prisons, public insti- nances, rules and regulations, state laws, and tutions, mines, public conveyances, camps, State Board of Health rules and regulations.18 places of group abode, and all buildings and The director of a city-county health depart- places of public resort, and recommend, pre- ment is to direct and supervise all public health scribe and enforce health, sanitation and safety activities in the county, except for incorporated measures; and cities and towns not in an agreement to operate 7) advise state and local governments on 19 their health department. health, sanitation and safety.22 A city-county board of health is to recom- The commissioner is authorized to hold hear- mend ordinances, rules and regulations on ings, issue orders, and has right of access to public health preservation and promotion to any premises for public health purposes.23 The the governing board of any city or town in its commissioner can conduct investigations, and jurisdiction and to the board of county com- inquiries.24 The commissioner is empowered missioners of the county within which it exists. to issue subpoenas for witness attendance The board is to assist in the formulation and and production of books and records; a con- adoption of uniform health ordinances, rules tempt proceeding may be filed in district court 20 and regulations within its jurisdiction. against any person who disobeys.25 The public health code empowers the district judge to punish offenders for contempt.

1932 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 …must exclude from private or public schools persons with communicable disease until the “period of isolation or quarantine has expired, or, until the local health official permits.

The commissioner can revoke, cancel or sus- VIOLATING LOCAL HEALTH OFFICER pend for one year the public health code ORDER CARRIES CRIMINAL PENALTY license or permit of any holder violating the code or any State Board of Health rule or When a local health officer determines or standard.26 ”suspects that a person has a communicable disease, he may impose a quarantine.32 Any The county superintendent’s powers and person detained in quarantine who leaves the duties, performed under the commissioner’s quarantine grounds or willfully violates any supervision, include: quarantine law or regulation commits a misde- 1) abolish nuisances that are inimical to pub- meanor offense.33 lic health; It is also a misdemeanor crime to be affected 2) isolate persons infected with dangerous, with any contagious disease and expose others communicable, infectious or contagious dis- in any public place or thoroughfare except in eases; a necessary removal in a manner not danger- 3) control, suppress or prevent the occurrence ous to the public health.34 A local health officer or spread of such diseases; can cause a person infected with a communi- 4) enforce emergency health regulations of cable disease to be removed to a hospital or the county board of health; similar place unless the person is sick in his 5) enforce the Oklahoma Public Health Code own place of residence or cannot be moved and State Board of Health rules and regulations without danger to his life.35 No one can remove applicable to the officer’s county; and a person with a communicable disease from 6) perform other duties and functions required the place where the person is sick to any other by the commissioner.27 place except in accordance with State Board of Health rules and regulations.36 The medical director of a county health department and the director of a city-county Parents, guardians and teachers must exclude health department are endowed with the pow- from private or public schools persons with ers, authority and duties conferred on county communicable disease until the period of iso- superintendents.28 lation or quarantine has expired, or, until the local health official permits.37 Oklahoma’s municipalities may enact and enforce ordinances, rules and regulations for The State Board of Health is authorized to public health not inconsistent with state law.29 adopt rules for quarantine, isolation, impound- Municipalities may establish and regulate hos- ing, immunization and disposal of animals pitals. And, they may make regulations to to prevent and control zoonotic disease.38 The prevent the introduction of contagious diseases commissioner can order quarantine, isolation, into the municipality and enforce quarantine impounding, immunization or disposal of any 30 laws within five miles of municipal limits. animal determined to be the source of zoonotic Oklahoma’s governor, the commander-in- disease.39 Violating an order is a misdemeanor chief of the state militia, is authorized to call offense.40 District courts may grant injunctive out the militia for purposes including protect- relief to compel compliance with the commis- ing the public health.31 sioner’s order.41

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1933 Willfully failing or refusing to comply with In addition to other responsibilities,55 the an order of the commissioner, the State Board public health authority may adopt and enforce of Health or a local health officer, or, violating measures for collection, storage, handling, the terms and conditions of a quarantine or destruction, treatment, transportation and dis- embargo are misdemeanor offenses.42 A person posal of contaminated waste. The public health who does an act for which a license or permit is authority may require any business or facility required under the public health code without authorized to deal with contaminated waste the license or permit commits a misdemeanor under Oklahoma laws, and any landfill busi- offense.43 ness, to accept contaminated waste or provide services or the use of the business, facility or District courts are authorized to grant injunc- property as a condition of licensure, authoriza- tive relief to prevent a violation or to compel tion or the ability to continue doing business in compliance with any provision of the public the state.56 The “use” of the business, facility health code or any rule or order issued pursu- or property may include transferring its man- ant to the code.44 In specified circumstances, agement or supervision to the public health the State Health Department has the authority authority for a period of time not to exceed the to assess a penalty of $10,000 per day of non- termination of the declaration of the state of the compliance with an order.45 catastrophic health emergency.57 SPECIALIZED EMERGENCY CHEPA authorizes the public health author- MANAGEMENT STATUTES ity to adopt and enforce measures for embalm- ing, burial, cremation, interment, disinter- Catastrophic Health Emergency Powers Act ment, transportation and disposal of human Oklahoma’s Catastrophic Health Emergency remains.58 The public health authority is Powers Act (CHEPA)46 is activated upon the empowered to take possession or control of occurrence of a “catastrophic health emer- any human remains and to order disposal of gency”47 as declared by the Oklahoma gov- human remains of a person who has died of a ernor in an executive order.48 “Catastrophic transmissible disease through burial or crema- 59 health emergency” means in part an imminent tion within 24 hours of death. threat of an illness or health condition caused CHEPA authorizes the public health author- by a nuclear attack, bioterrorism or a chemi- ity to purchase and distribute anti-toxins, cal attack.49 That definition combined with the serums, vaccines, immunizing agents, antibiot- definition of “bioterrorism”50 allows CHEPA ics and other pharmaceutical agents or medi- to operate for criminal conduct rather than cal supplies to prepare for or control a cata- naturally occurring events or disasters. strophic health emergency.60 If the emergency results in a shortage of these items, whether However, effective Nov. 1, 2007, CHEPA will or not purchased, the public health authority apply to a pandemic occurrence as well as due may control, restrict, and regulate by rationing to expansion of the definition of “catastrophic and using quotas, prohibitions on shipments, health emergency” to cover “the appearance of allocation or other means, the use, sale, a novel or previously controlled or eradicated 51 dispensing, distribution or transportation of agent or biological toxin.” the items during the emergency.61 CHEPA charges the “public health author- The public health authority possesses emer- ity,” the State Commissioner of Health or local gency powers on licensing and appointment of 52 health department with investigating illness health personnel during the catastrophic health or health conditions that may cause a cata- emergency. The authority may require in-state strophic health emergency, identifying exposed health care providers62 to assist in treating or individuals, as well as closing, evacuating examining individuals as a condition of licen- and decontaminating any facility reasonably sure, authorization or the ability to continue to believed to endanger public health.53 The pub- function as a health care provider in Oklaho- lic health authority’s orders accordingly are ma.63 The authority may appoint and prescribe immediately enforceable by the “public safety duties of out-of-state emergency health care authority” (the Commissioner of Public Safety providers to respond during the declared state or any local government agency acting for of emergency.64 The authority may waive licens- public safety).54 ing requirements, permits or fees required by

1934 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 CHEPA does not pre-empt other laws or rules that preserve to a greater degree the powers of the “ public health authority.

the state and applicable rules or orders to allow or rules concerning public health powers, the providers to practice in Oklahoma.65 provisions of CHEPA will apply.70 These are serious and significant powers for The governor or the state Legislature may serious times. terminate the declaration of a state of cata- ” 71 strophic health emergency. However, CHEPA provides: “The rights of the people to liberty, bodily integrity, and privacy OKLAHOMA EMERGENCY must be respected to the fullest extent possible MANAGEMENT ACT OF 2003 consistent with maintaining and preserving The purposes of the Oklahoma Emergency the health and security of the public during a 66 Management Act of 2003 (EMA) are many. catastrophic health emergency.” EMA creates the Oklahoma Department of The governor is afforded expanded powers Emergency Management and authorizes the during a state of catastrophic health emer- creation of local organizations for emergency gency. For example, the governor may suspend management72 in counties and incorporated regulatory statutes on conducting state busi- municipalities. EMA forces emergency plan- ness, or orders or rules of any state agency, ning through provisions mandating a state if compliance would prevent or delay action emergency operations plan and assuring that (including emergency purchases) by the pub- all state agencies and entities have written lic health authority. The governor may use all plans and procedures. In addition to conferring available resources of the government and its emergency powers on the governor and execu- political subdivisions to respond. The gover- tive heads or governing bodies of political nor may mobilize the National Guard, provide subdivisions, it provides for rendering mutual aid to and seek aid from other states under an aid among political subdivisions, with other interstate emergency compact, and, may seek states and the federal government to perform aid from the federal government.67 emergency management functions and hazard mitigation.73 Subject to not exceeding $50 million in the fis- 74 cal year, the governor may transfer money from EMA covers both man-made disasters and 75 any fund available to the governor in the State natural disasters. “Emergency management” Treasury when: 1) no appropriation is available means preparation for and coordination of all to meet the emergency; or, 2) an appropriation emergency functions to prevent, minimize and repair injury and damage from natural or man- is insufficient to meet the emergency; or, 3) 76 available federal monies require the use of state made disasters declared by the governor. or other public monies.68 Either the governor or the Legislature in a CHEPA does not pre-empt other laws or concurrent resolution may proclaim the exis- tence of an emergency or its termination under rules that preserve to a greater degree the 77 69 EMA. The governor has powers and duties powers of the public health authority. Some 78 might argue that the broader powers in the under the EMA outside of an emergency and additional emergency powers to exercise dur- public health code empower a public health ing the emergency.79 authority to a greater degree than CHEPA’s more specific provisions. During a catastrophic EMA allows political subdivisions in which health emergency, in the event of a conflict disasters occur to declare a local emergency between CHEPA and other state or local laws and to enter into contracts and incur obliga-

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1935 tions to combat such disaster.80 Such a political THE OKLAHOMA INTRASTATE MUTUAL subdivision is specifically authorized to exer- AID COMPACT cise these powers “without regard to time-con- The Oklahoma Intrastate Mutual Aid Com- suming procedures and formalities prescribed pact90 affords a system of intrastate mutual aid by law (excepting mandatory constitutional between participating in-state jurisdictions.91 requirements) pertaining to the performance The intrastate mutual aid is for use to pre- of public work, entering into contracts, the vent, respond to and recover from any disas- incurring of obligations, the employment of ter resulting in a formal state of emergency temporary workers, the rental of equipment, in a participating jurisdiction.92 “Emergency” the purchase of supplies and materials, and the means any occasion or instance for which appropriation and expenditure of publi assistance is needed to supplement local efforts funds.”81 and capabilities to save lives, to protect prop- erty and public health and safety, or to lessen In collaboration with other public and private or avert the threat of catastrophe.93 The com- agencies within the state, the director of each pact provides for planning requirements94 and local organization for emergency management cooperation of participating jurisdictions to may develop mutual aid arrangements for conduct disaster-related exercises, testing or reciprocal emergency management aid.82 Each other training activities outside of declared 95 local organization for emergency management emergencies. has the duty to render assistance in accordance The compact’s provisions cover “jurisdic- with the provisions of the mutual aid arrange- tions,” defined to mean “any county, city, ments.83 Any municipal fireman or policeman town or municipal corporation of the State of engaged in emergency management activities Oklahoma represented by an elected govern- while complying with EMA is considered as ing body” and Sovereign Tribal Nations in 96 serving in his or her regular line of duty and Oklahoma. All jurisdictions are automatically deemed a part of the statewide mutual aid sys- entitled to applicable pension fund benefits.84 tem under the compact,97 but can, upon the Requirements for a license to practice any governing body’s enactment of a resolution, professional, mechanical or other skill shall not elect not to participate or later withdraw. Pro- apply to authorized emergency management viding the requested assistance, and its with- workers with licenses from states rendering drawal, is in the sole discretion of the aiding 98 mutual aid during an emergency.85 jurisdiction. Jurisdictions rendering aid may withhold resources as necessary to provide The state of Oklahoma, its political subdivi- reasonable protection for their jurisdictions.99 sions, officers or employees, and volunteers Under its specific terms, the compact does are not civilly liable for loss or injury to any not affect any other agreement to which a person’s company, corporation or other legal jurisdiction may be a party or enter.100 entity as a result of action during the emer- gency.86 Persons who own or control real estate The compact does not dictate how a jurisdic- and voluntarily, without compensation permit tion needing assistance declares an emergency. However, the compact’s provisions apply only use to shelter persons during an emergency or when requests101 are made by and to the autho- exercise are not civilly liable for negligently rized representatives of the respective juris- 87 causing death or injury. dictions.102 The compact allows no immunity, The Oklahoma Department of Emergency rights or privileges for any responding indi- vidual who is not requested and/or authorized Management may request the attorney general 103 to bring civil action against those who violate to respond by a participating jurisdiction. In this regard, officers or employees of a juris- or fail to comply with an order, refuse to admit diction rendering aid under the compact are authorized representatives, refuse to permit considered within the scope of employment inspection, and refuse to furnish requested of the requesting jurisdiction for tort liability information or reports.88 Willful violation of the and immunity purposes. No jurisdiction or its Oklahoma Department of Emergency Manage- officers or employees rendering aid in another ment’s rules, regulations or orders is a misde- jurisdiction pursuant to the compact are liable meanor offense89 for any act or omission in “good faith” while

1936 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 so engaged, or, on account of the maintenance For example, under the Oklahoma Good or use of any equipment or supplies.104 “Good Samaritan Act, persons who are licensed to faith” does not include willful misconduct, treat human ailments, disease, pain and injury gross negligence or recklessness.105 who, without a prior contractual relationship; under emergency circumstances that may lead Each jurisdiction is required to provide for to probable death or serious bodily injury; in compensation and death benefits to its own good faith; voluntarily and without compen- officers and employees injured or killed while sation; provide emergency care to an injured rendering assistance pursuant to the compact person or one in need of immediate medical in the same manner and on the same terms as aid, shall not be liable for damages for any acts if the injury or death were sustained within its or omissions except for committing gross negli- own jurisdiction.106 No immunity is provided gence or willful or wanton wrongs in rendering under the compact to private individuals or care.113 entities although the compact refers to an “emergency responder” as coming from the And, any person, not just licensed profes- public or private sector,107 and, to the best use sionals, who: without a prior contractual rela- of “assets both public and private.”108 tionship; in good faith; provides emergency care of artificial respiration, res- Under the compact, receiving toration of breathing, preventing jurisdictions are to reimburse loss of blood, aiding heart action the responding jurisdiction or circulation of blood; to a vic- for any loss, damage, expense tim of an accident or emergency; or cost incurred in operating shall not be liable for any civil equipment or providing servic- damages as a result of acts or es for the request.109 Compensa- omissions.114 tion expenses are not deemed reimbursable under these pro- Under similar conditions, per- visions.110 The compact permits sons licensed to perform surgery the aiding jurisdiction to wholly or dentistry who provide emer- or partially assume such loss, gency care requiring an opera- damage, expense or other cost tion or other form of surgery or to loan equipment or donate upon the victim of an accidental services to the receiving juris- act are not liable for civil damag- diction without charge or cost.111 es or subject to criminal prosecu- The jurisdictions are authorized tion for nonconsent.115 Qualified to enter into agreement estab- persons who meet specified lishing a different allocation conditions and render emer- of cost.112 gency care or treatment out- Donors who meet side of a medical facility by IMMUNITY FROM use of an automated external LIABILITY requirements and make defibrillator are immune from A variety of statutory provi- civil liability for personal inju- sions may afford immunity good faith donations ry. 116 from liability to private per- Donors who meet require- sons who assist the state and “of food to a charitable ments and make good faith its local governments in man- donations of food to a charita- aging emergencies. Immuni- organization or nonprofit ble organization or nonprofit ties afforded under specialized corporation are not liable for emergency provisions have corporation are not liable damages in any civil suit or been discussed. These grants subject to criminal prosecu- of immunity from liability are for damages in any civil tion for any injury resulting of the utmost importance to from the nature, age, con- facilitate necessary public-pri- suit or subject to dition or packaging of the vate cooperation and partner- donated food.117 ship. criminal prosecution… A licensed architect or pro- fessional engineer who meets Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal ” 1937 requirements and provides, upon request or 27 written orders directing persons to act.122 The with approval, architectural, structural, electri- voluntary compliance of the Toronto popula- cal, mechanical or other design professional tion in the SARS epidemic was incredible. services related to a national, state or local 123 emergency caused by a natural disaster or cata- The economic aspects of the SARS epidemic strophic event is not liable for personal injury, drove a partnership between government and wrongful death, property damage or other loss business in Toronto. The business community in performance of services for any publicly or became directly involved in the resolution of privately owned structure, building, facility, the public health situation. The key lesson of project, utility equipment, machine process, SARS: “Voluntary compliance is the corner- piping or other system.118 stone of any emergency response; legal pow- ers are ineffective in the absence of voluntary Pursuant to the Volunteer Medical Profes- compliance.”124 sional Services Immunity Act, any person meeting requirements and participating in a CONCLUSION medical reserve corps and assisting with emer- Laws that form Oklahoma’s public health gency management, emergency operations or structure include specialized emergency man- hazard mitigation in response to any emer- agement enactments. These specialized laws gency, man-made disaster, or natural disaster or participating in public health initiatives run the gamut of coverage from natural to endorsed by a city, county or state health man-made catastrophes, disasters and emer- department in Oklahoma is not liable for civil gencies. Oklahoma has attempted through its damages.119 Volunteer medical professionals legal framework to be prepared. The fear is who meet requirements are immune from civil that despite the concerted planning, training liability in providing volunteer medical profes- and governmental coordination prescribed and sional services at a free clinic.120 facilitated by the laws, those efforts alone will not be enough to contend with an unknown LESSONS LEARNED FROM TORONTO’S catastrophe. Oklahoma’s public health entities SARS EPIDEMIC are better equipped for the future because they The 2003 Toronto SARS epidemic lasted have the opportunity to learn from the Toronto almost 14 weeks, March through June, 2003 SARS epidemic as well as emergencies within in two phases of seven weeks each. The first this nation. phase began after a traveler from southeast The primary learning from SARS is that the Asia introduced SARS. The second began when fullest cooperation of private sector entities and the epidemic was almost under control and an individuals is a necessity if a pandemic flu, or undetectable SARS “superspreader” with no symptoms visited a Toronto hospital. The SARS similar health crisis, impacts Oklahoma. The epidemic was successfully brought under con- state and its local governmental entities can- trol using a combination of “old-fashioned” not manage a significant emergency without public health control measures without a SARS that cooperation and support. Absent compli- vaccine or rapid diagnostic test. These con- ance and cooperation, the ability of any public trol measures included: public information health system to vaccinate or otherwise assist about hygiene; use of masks, gloves, gowns large numbers of people will grind to a halt. and similar airborne infectious disease control Planning successfully for a pandemic requires measures; strict isolation of diagnosed SARS planning for and enlisting cooperation from patients; quarantine measures for about 30,000 public and private entities. persons believed to have been exposed to To that end, it is prudent to consider all SARS; closure of facilities where SARS trans- efforts designed to enlist cooperation. This mission was occurring; and, international trav- includes continued legislative efforts to immu- el advisories.121 nize cooperating persons and other entities The numbers tell the story. There were 44 from liabilities for acts and omissions during deaths; over 13,000 people were isolated; over participation in an emergency. 23,000 contacts were investigated; hotline calls amounted to 300,000 with a peak of 47,567 in 1. Webster’s Encyclopedic Unabridged Dictionary of the English Language, 1996, Random House Value Publishing, Inc. one day. The most amazing number of all is 27; 2. www.pandemicflu.gov/general/index.html; www.health. the Canadian public health authority used only ok.gov/program/cdd/flu/avian.html.

1938 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 3. CNN.com – Leavitt: States will ration bird flu vaccine – June 62. “Health care provider” means any person or entity who pro- 6, 2006 at www.cnn.com/2006/HEALTH/conditions/06/06/bird.flu. vides health care services, including without limitation, physicians, test.ap/index.html. pharmacists, dentists, physician assistants, nurse practitioners, regis- 4. CNN.com – Leavitt: States will ration bird flu vaccine – June tered and other nurses, paramedics, emergency medical or laboratory 6, 2006 at www.cnn.com/2006/HEALTH/conditions/06/06/bird.flu. technicians, and ambulance and emergency medical workers. Okla. test.ap/index.html. Stat. tit. 63, § 6104A. 6. (2001). 5. Okla. Stat. 63, § 1-106(b)(1), (2) (2001). 63. Okla. Stat. tit. 63, § 6602 (2001). 6. Okla. Stat. 63, §§ 1-106(b) (11) and (12) (2001). 64. Okla. Stat. tit. 63, § 6602 2. (2001). 7. Okla. Stat. tit. 63 §1-203(a) (2001). 65. Okla. Stat. tit. 63, § 6602 2. b (2001). 8. Okla. Stat. tit. 63, 1-204 (2001). 66. Okla. Stat. tit. 63, § 6102 9 (2001). 9. Okla. Stat. tit. 63, § 1-201 (2001). 67. Okla. Stat. tit. 63, § 6403 (2001). 10. Okla. Stat. tit. 63, § 1-202(b), (c), (e), and (f) (2001). 68. Okla. Stat. tit. 63, § 6802 A.,C., and D. 2 (2001). 11. Okla. Stat. tit. 63, § 1-205(a) (2001). 69. Okla. Stat. tit. 63, §§ 6803, 6104 11 (2001). 12. www.health.state.ok.us/program/index.html. 70. Okla. Stat. tit. 63, § 6804 B (2001). 13. Okla. Stat. tit. 63, § 1-205 (d) (2001). 71. Okla. Stat. tit. 63, § 6403 (2001). 14. Okla. Stat. tit. 63, § 1-209 (2001). 72. A “local organization for emergency management” means an 15. Okla. Stat. tit. 63, § 1-209 (2001). organization created by state or local authority pursuant to the EMA 16. Okla. Stat. tit. 63, § 1-210 (2001). to perform local emergency management functions. Okla. Stat. tit. 17. Okla. Stat. tit. 63,§ 1-214 A (2001). 63, § 683.3 6. (2001). Qualified emergency management directors are 18. Okla. Stat. tit. 63,§§ 1-214 D. and 1-215 (2001). required for all counties; municipalities must also have directors, or, 19. 63 Okla. Stat. tit. 63, § 1-215 (2001). create agreements with counties for emergency management. Okla. 20. Okla. Stat. tit. 63, § 1-210 (2001). Stat. tit. 63, § 683.11 (2001). 21. Okla. Stat. tit. 63, § 1-502 (2001). 73. Okla. Stat. tit. 63, § 683.2 (2001). 22. Okla. Stat. tit. 63, §1-106 (B)(1) (2001). 74. Man-made disasters are caused by acts of man, including ter- 23. Okla. Stat. tit. 63, 1-106(B)(4) (2001). rorism, chemical spills or releases, and power shortages, that require 24. Okla. Stat. tit. 63, 1-106(B)(5) (2001). assistance from outside the local political subdivisions. Okla. Stat. tit. 25. Okla. Stat. tit. 63, 1-106(B)(7) (2001). 63, § 683.3 7. (2001). 26. Okla. Stat. tit. 63, 1-106 (B)(10) (2001). 75. Natural disasters means any natural catastrophe, such as tor- 27. Okla. Stat. tit. 63, § 1-204 (2001). nados, flood waters, or drought, which reaches sufficient severity to 28. Okla. Stat. tit. 63, § 1-215 (2001). warrant hazard mitigation or use of resources of other entities. Okla. 29. Okla. Stat. tit. 11, § 120A (Supp. 2005). Stat. tit. 63, § 683.3 8. (2001). 30. Okla. Stat. tit. 11, § 120A (Supp. 2005). 76. Okla. Stat. tit. 63, § 683.3 1 (2001). 31. Okla. Const. art. VI, § 6. 77. Okla. Stat. tit. 63, § 683.9 (2001). 32. Okla. Stat. tit. 63, § 1-504 (2001). 78. Okla. Stat. tit. 63, § 683.8 (2001). 33. Okla. Stat. tit. 21, § 1195 (2001). 79. Okla. Stat. tit. 63, § 683.9 (2001). 34. Okla. Stat. tit. 63, § 1199 (2001). 80. Okla. Stat. tit. 63, § 683.11 F. (2001). 35. Okla. Stat. 63, § 1-505 (2001). 81. Okla. Stat. tit. 63, § 683.11 F. (2001). 36. Okla. Stat. tit. 63, § 1-506 (2001). 82. Okla. Stat. tit. 63, § 683.12 A. (2001). 37. Okla. Stat. tit. 63, § 1-507 (2001). 83. Okla. Stat. tit. 63, § 683.12 A. (2001). 38. Okla. Stat. tit. 63, § 1-508 A.1 (2001). 84. Okla. Stat. tit. 63, § 683.13 A. (2001). 39. Okla. Stat. tit. 63, § 1-508 B. 1 (2001). 85. Okla. Stat. tit. 63, § 683.13 C. (2001). “Emergency management 40. Okla. Stat. tit. 63, § 1-508 C (2001). worker “ includes any full or part-time paid, volunteer, or auxiliary 41. Okla. Stat. tit. 63, § 1-508 D (2001). Public officers and employees employee of this or other states, territories, possession or the District acting within the scope of their authority to control zoonotic disease are of Columbia, or the federal government, or any neighboring country not liable for damages. Okla. Stat. tit. 63, § 1-508 B.2 (2001). or any political subdivision thereof, or of any agency or organization, 42. Okla. Stat. tit. 63, § 1-1701 A. 1 (2001). performing emergency management services under state supervision 43. Okla. Stat. tit. 63, § 1-1701 A. 4 (2001). at any place in this state. 44. Okla. Stat. tit. 63, § 1-1701 B.1 (2001). “Code” includes the 86. Okla. Stat. tit. 63, § 683.14 B. (2001), excepting gross, willful, Public Health Code and statutes codified in Title 59 for regulation of wanton negligence. professions, occupations for which the State Health Department issues 87. Okla. Stat. tit. 63, § 683.14 B. (2001), excepting gross, willful, licenses. Okla. Stat. tit. 63, § 1-1701 B. 3 (2001). wanton negligence. 45. Okla. Stat. tit. 63, § 1-1701.1A (2001). 88. Okla. Stat. tit. 63, § 683.23 A. (2001). 46. Okla. Stat. tit. 63, § 6101 (2001), et seq. 89. Okla. Stat. tit. 63, § 683.23 C. (2001). 47. Okla. Stat. tit. 63, § 6102 11 (2001). 90. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.1, 48. Okla. Stat. tit. 63, §§ 63, 6401, 6402 (2001). et seq. 49. Okla. Stat. tit. 63, § 6104 2 (2001). 91. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.2. 50. Okla. Stat. tit. 63, § 6104 1 (2001). “Bioterrorism” means “the A. intentional use of any microorganism, virus, infectious substance, or 92. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S.§ 695.2 C. biological product that may be engineered as a result of biotechnology, 93. 2006 Okla. Sess. Laws, c. 199, to be codified at 63 O.S. § 695.2 or any naturally occurring or bioengineered component of any such B.2. microorganism, virus, infectious substance, or biological product, to 94. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.4. cause death , disease, or other biological malfunction in a human, an 95. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.2 C. animal, a plant, or another living organism in order to influence the 96. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.2 conduct of government or to intimidate or coerce a civilian popula- B.1. tion.” 97. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.2 51. 2007 Okla. Sess. Laws, c. 473, to be codified at 63 O.S. § 6104, D. Senate Bill 399. 98. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.4 52. Okla. Stat. tit. 63, § 6104 11. (2001). D. 53. Okla. Stat. tit. 63, § 6302 (2001). To the extent practicable consis- 99. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.5. tent with protection of public health, prior to destruction of property 100. 2006 Okla. Sess. Laws, c. 199, to be codified at 63 O.S. § 695.2 under CHEPA, the public health authority shall institute appropriate D. civil proceedings. Okla. Stat. tit. 63, § 6504 (2001). 101. Information to be included in the requests for aid include a 54. Okla. Stat. tit. 63, § 6104 12 (2001); Okla. Stat. tit. 63, § 6302 C description of the emergency service function needed (such as fire (2001). service, law enforcement, emergency medical, mass care, health and 55. Okla. Stat. tit. 63, §§ 6403, 6601, and 6701 (2001). medical services, and search and rescue); the amount and type of 56. Okla. Stat. tit. 63, § 6501 (2001). personnel, equipment, materials and supplies needed and an estimate 57. Okla. Stat. tit. 63, § 6501 B (2001). of time for which they will be needed; and, the specific place and time 58. Okla. Stat. tit. 63, § 6502 A. 1 (2001). for staging the response. 2006 Okla. Sess. Laws, c.199, to be codified at 59. Okla. Stat. tit. 63, § 6502 A. 2. and 3 (2001). 63 O.S. § 695.4 B. 60. Okla. Stat. tit. 63, §6503 A (2001). 102. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.4 61. Okla. Stat. tit. 63, §6503 B (2001). B.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1939 103. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.2 123. Twelve thousand people lost jobs; nine city-wide conventions C. cancelled in the summer of 2003; the cost to the Toronto economy for 104. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.7. 2003 alone was over $1 billion. “The Public/Private Response to Sud- 105. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S.§ 695.7. den Disease Outbreak” June 30, 2006 Final Report prepared for the 106. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.8. Alfred P. Sloan Foundation by Gene Matthews, JD, Director of the CDC 107. 2006 Okla. Sess. Laws, c. 199, to be codified at 63 O.S. § 695.2 Foundation Institute of Public Health B.3. 124. International Municipal Lawyers Association 2006 Annual 108. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.2 Conference, Sept. 17-20, 2006, Portland, Oregon; Work Session V. Man- C. aging Critical New Public Health Concerns, presentation “Planning for 109. 2006 Okla. Sess. Laws, c. 199, to be codified at 63 O.S. § 695.9. a Pandemic: Lessons Learned from SARS,” by Anna Kinastowski, City 110. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.9. Solicitor, City of Toronto. 111. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.9. 112. 2006 Okla. Sess. Laws, c.199, to be codified at 63 O.S. § 695.9. 113. Okla. Stat. tit. 76, § 5(a)(1) (2001). ABOUT THE AUTHOR 114. Okla. Stat. tit. 76, § (a)(2) (2001). 115. Okla. Stat. tit. 76, § 5(a)(3) (2001). Martha Rupp Carter 116. Okla. Stat. tit. 76, § 5A A. (2001). 117. Okla. Stat. tit. 76, § 5.6 (2001). graduated from OSU with 118. Okla. Stat. tit. 76, § 5.8 (2001). a B.A., honors in English, 119. Okla. Stat. tit. 76, § 32 (Supp. 2005). 120. Okla. Stat. tit. 76, § 32 B. (Supp. 2005). and obtained her J.D. from 121. “The Public/Private Response to Sudden Disease Outbreak” OU. Following five years of June 30, 2006 Final Report prepared for the Alfred P. Sloan Founda- tion by Gene Matthews, JD, Director of the CDC Foundation Institute private practice with Son- of Public Health. A $45,000 grant to the Alfred P. Sloan Foundation berg and Waddel, she served resulted in a meeting in Toronto March 2 and 3, 2006, to comprehen- in the City of Tulsa legal sively examine with key legal and business experts in the U.S. and Canada the public health and economic lessons learned from the SARS department for 19 years. She outbreak. was appointed as Tulsa’s city 122. International Municipal Lawyers Association 2006 Annual Conference, Sept. 17-20, 2006, Portland, Oregon; Work Session V. Man- attorney, serving four years in this position. In aging Critical New Public Health Concerns, presentation “Planning for June 2004, she was selected as the Tulsa City- a Pandemic: Lessons Learned from SARS,” by Anna Kinastowski, City Solicitor, City of Toronto. County Health Department’s general counsel.

1940 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 CRIMINAL DEFENSE IN THE DEATH BELT III Presented By: OKLAHOMA CRIMINAL DEFENSE LAWYERS ASSOCIATION & THE OFFICE OF THE OKLAHOMA COUNTY PUBLIC DEFENDER Thursday, August 23, 2007 & Friday, August 24, 2007 The Oklahoma City Marriott Hotel, NW Expressway 14 hours CLE (including 1 Ethics)

Thursday Morning: 8:00 – 8:15 Welcome & Introductory Remarks. David Ogle, President, Oklahoma Criminal Defense Lawyers Association 8:15 – 9:05 Handling the High Profile Case. David Smith, Esq. 9:05 – 9:55 Addressing Prosecutorial Misconduct at Trial. Gary James, Esq. 9:55 – 10:10 break 10:10 -11:00 Ethical Obligations When You Believe the State is Withholding Evidence. David Autry, Esq. 11:00 – 11:30 Devolving Standards of Decency: Death Penalty for Non-Homicide Sex Offenses. Cindy Viol, Esq. 11:30 – 12:00 Faith Based Interventions in the Death Penalty Process. Jim Fowler, Vicki Werneke, Esq. and Rev. Mendle Adams 12:00 – 1:00 break

Thursday Afternoon: 1:00 – 1:50 Appellate Update. Janet Chesley, Esq. 1:50 – 2:40 When is it Best to Use/Not Use a Mental Health Expert? Richard Burr, Esq. 2:40 – 2:55 break 2:55 – 3:45 Representation of Foreign Nationals. Danalynn Recer, Esq. 3:45 – 5:05 The Colorado Method of Jury Selection- Introduction. David Lane, Esq. 5:05 SOCIAL GATHERING ---- LOCATION TO BE ANNOUNCED

Friday: 9:30 a.m. – 2:00 p.m. The Colorado Method of Jury Selection (cont’d). David Lane, Esq.

------REGISTRATION------COST: $125 OCDLA MEMBER $160 NON-MEMBER $100 PUBLIC DEFENDER

NAME: ______BAR # ______

ADDRESS: ______

EMAIL ADDRESS: ______

PAYMENT: VISA AMEX MC DISCOV #______Exp Date: ______Check: payable OCDLA.

MAILING ADDRESS: Oklahoma Criminal Defense Lawyers Association, PO Box 2272, Oklahoma City, OK 73101-2272. Fax: 405-239-2595. Questions? Contact Brandon Pointer, 405-232-5959.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1941 1942 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Health LAW HIPAA Rules All Lawyers Should Know By Teresa Meinders Burkett awyers in many areas of practice have probably encoun- tered the term “HIPAA” in some context by now. All too Loften, it seems that HIPAA is offered as a routine excuse to require some action or to refuse some request by people who never may have opened the HIPAA regulations. For that reason, a brief explanation of HIPAA, its purposes and how it actually impacts the practice of law may be useful.

WHAT IS “HIPAA” AND WHY WAS IT stored and transmitted electronically. One goal PASSED? was to speed and simplify the billing process HIPAA is the acronym for the Health Insur- for health care providers, as well as private ance Portability and Accountability Act. Con- and governmental payors for health services. gress passed HIPAA in 1996, in part, to facili- The process eventually developed was based tate continued insurance coverage of indi- somewhat on the advances in the banking viduals who move between employers that industry that increased efficiency in electronic provide health insurance. If an employee can processing of checks, use of ATM machines 1 provide a “certificate of creditable coverage” and other financial operations. to a new employer, showing evidence that the Individuals learned that the proposed elec- employee participated in the health insurance tronic submission of health claims would benefit plan of a prior employer, the employee necessitate the electronic maintenance of health must be allowed to participate in the new information, dramatically increasing the risks employer’s insurance plan without a waiting to the security and privacy of that information. period for a prior medical condition. HIPAA Privacy advocates lobbied Congress to protect also contains new provisions to combat fraud the privacy and confidentiality of this informa- and abuse in health care. The employment law tion as health care providers moved sensitive and health care compliance aspects of HIPAA health information to computer systems. The would merit another article. The purpose of result was the HIPAA administrative simplifi- this explanation is to provide context to the cation provisions, including the Privacy Rule regulations issued under HIPAA that impact and Security Rule, comprehensive regulations the legal system’s interface with health care first issued as proposed rules in December providers. 2000. The Department of Health and Human Administrative standards that simplify Services expected the Privacy Rule to provide electronic billing for health care providers is “all Americans with a basic level of protection” another important purpose accomplished by for their personal medical information, allow- the passage of HIPAA. These new standards ing the states to set more stringent protections require individuals’ health information to be if they preferred.2 The compliance date for the

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1943 new privacy rules, issued in final form in 2001, “protected health information” and “desig- was April 14, 2003. nated record set.” PHI is generally defined as all individually identifiable health information Enforcement created, received, maintained or transmitted HIPAA is enforced by the Department of by a health care provider or health plan with Health and Human Services Office of Civil respect to an individual’s past, present or Rights (OCR). There is a broad range of penal- future physical or mental health care. PHI may ties that may be assessed against a covered enti- be in paper, electronic, video or any other for- ty that improperly uses or discloses protected mat. A “designated record set” is the collection health information or “PHI.” In the worst case, of health care and billing records used to make a covered entity who sells PHI for its own decisions about the provision of or payment benefit may be fined up to $250,000 and jailed for an individual’s health care. for up to 10 years.3 As of June 5, 2006, the OCR had received thousands of complaints under HIPAA but had not imposed a single civil fine and had prosecuted two criminal cases against employees of covered entities who accessed and used patient information for personal gain. There is no private right of Of the 19,420 complaints received by OCR as of June 2006, most involved the improper disclo- action under HIPAA to redress sure of information, disclosure of more infor- mation by providers than should have been any improper disclosures. revealed and failure to give patients access to “ their own information. Those who may be held criminally responsible for violations of HIPAA include those entities cov- Prior to HIPAA, lawyers and ered by the health care providers frequently HIPAA regu- referred to the “release” of medi- lations, as cal records. Patients or clients well as their ” were asked to sign a “consent” directors, form typically called a Consent officers and for Release of Medical Records. employees The terms “release” and “con- under prin- sent” are out of style in health ciples of cor- information circles today. Instead porate crimi- of “consenting” to the disclosure nal liability.4 of a medical record, individuals There is no now must “authorize” a disclo- private right sure. Consent and authorization of action were given different meanings under HIPAA in the original privacy rule and to redress HIPAA now requires individu- any improper disclosures. However, individu- als to “authorize” the use or disclosure of their als would possibly have a claim under a state PHI. “Release” is also a term seldom used breach of privacy theory against anyone who now in the context of medical information. improperly used or disclosed the individual’s The privacy rule governs both the “use” and health information. “disclosure” of PHI rather than its release. PHI is “used” when it is shared or relied on within Terms Used in HIPAA the entity that created or maintains it and it is The HIPAA privacy rule introduced a new “disclosed” when it is shared with third parties set of terms that are now uniformly applied outside the entity’s workforce.5 A health care in discussions of medical records and health provider cannot use or disclose PHI except as information. The term “medical record” has permitted by the privacy rule. been supplanted by the more specific terms

1944 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 A health care provider typically may use PHI claims for payment to insurers after receiving for treatment, payment or its own health care the claim from the health care provider.9 operations without a patient’s authorization. Those who provide services to covered enti- However, disclosures usually are permitted ties must also comply with HIPAA through only with the patient’s authorization or when the terms of a business associate agreement. A specific provisions of the privacy rule are met. business associate is a third party performing Importantly, the only disclosures of PHI that services or functions, involving the use or dis- are mandatory are disclosures to the individ- closure of PHI, on behalf of the covered entity. ual who is the subject of the PHI and disclo- Examples of business associates include law sures to the HIPAA enforcement branch of the firms, accounting firms and other profession- federal government.6 All other disclosures by a als who provide services to a covered entity covered entity are permissive. and who require access to PHI to perform their When a proposed disclosure is permissive work. Importantly, business associates are not rather than mandated by law, covered entities subject to penalties imposed by the govern- often require their own policies to be followed ment, but may be liable to the covered entity or their own forms to be used before requests for whom they provide services. for permissive disclosures will be honored. A written business associate agreement These requirements are imposed because the between the covered entity and business asso- covered entity, and not the person requesting ciate must be in place prior to the disclosure disclosure, is subject to penalty if a disclosure of any PHI by the covered entity. An attorney is made without complying with HIPAA. or law firm providing legal representation to a Entities That Must Comply with HIPAA covered entity may be a business associate of the covered entity. An example of a typical law Covered entities that must comply with firm business associate agreement is available HIPAA include health care providers, health online. A law firm business associate agree- plans and clearinghouses. A health care pro- ment is unique in that its terms attempt to pre- vider is an individual or organization that serve the attorney client privilege in the event provides care, services or supplies related to records of the law firm or the covered entity the health of an individual or with respect are requested by the Office of Civil Rights or to the physical or mental condition or func- by a court order. tional status of that person.7 To be covered by HIPAA, a health care provider must transmit There are other individuals or entities who health information electronically. Now that are not covered entities or business associates Medicare and the vast majority of third-party but who are affected by HIPAA. Congress did payors require claims for health services to be not include employers, schools or insurers submitted electronically, almost all health care other than health insurers within the defini- providers are covered entities under HIPAA. tion of a covered entity, even though such enti- ties frequently deal with medical information. A health plan is “an individual or group Nevertheless, these entities are often impacted plan that provides, or pays the cost of medical by HIPAA, especially when interacting with care.”8 This definition includes both govern- covered entities. For example, workers com- mental and private health insurers. Companies pensation insurers are not covered entities. that self-insure their employee health benefit However, they often need to receive PHI from plans are the plan sponsors and have to com- health care providers who are bound to comply ply with many parts of HIPAA. This is because with HIPAA. In order to receive the informa- the distinction between a self insured plan and tion they need to perform their services, case the plan sponsor is largely fictional. Employ- managers and others involved in the workers ers that fully insure the health plans they offer compensation system must use mechanisms have minimal HIPAA compliance obligation. authorized by the privacy rule. For example, A health care clearinghouse is an entity that an individual who is being treated for a work- receives electronic health information from related injury is typically asked to sign an providers, converts the data to a standardized authorization to allow his PHI to be shared format and forwards the data to an insurance with a nurse case manager for the employer’s company. This is the middleman that sends insurance company.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1945 Employers typically are not covered enti- the patient’s litigation arising out of a motor ties, but if PHI of an employee is needed to vehicle accident that occurred on June 1, 2005, evaluate an FMLA leave request or to develop including all appeals”; e) signature of the indi- accommodations to comply with the Ameri- vidual and the date. If the individual’s personal cans With Disabilities Act, the employee will representative signs the form, the basis for that have to sign an authorization form to allow representative’s authority must be described, the employer access to his or her health infor- such as the individual’s guardian or health mation. Once an employer receives PHI based care proxy.13 Oklahoma law does not permit an on an employee’s authorization, the informa- individual’s spouse or other family member tion is no longer considered PHI and it is no to authorize disclosures of information unless longer protected under HIPAA. While other the family member has been affirmatively laws require employers to maintain medical appointed as guardian, power of attorney or information separate from other information other legally accepted status. in a personnel file, the employer has no obliga- In addition to the core elements, a valid tions with respect to that information under authorization must include statements that HIPAA. the individual may revoke the authorization, Patient Protections Under HIPAA that the information disclosed may be subject that Affect Lawyers to redisclosure by the recipient, that the indi- vidual may inspect any information before Authorizations it is released, and that unless the purpose of Covered entities typically require an authori- the authorization is to determine payment of zation form signed by a patient or the patient’s a claim for benefits, the provision treatment “personal representative” before PHI will be or payment for care provided will not be disclosed.10 A HIPAA compliant authorization conditioned upon the individual signing the form is available online. This form includes the authorization.14 core elements of a valid authorization under Court Orders the HIPAA privacy rule, as well as require- ments unique to Oklahoma law such as the If a covered entity is provided a copy of an AIDS statement and notice of rights.11 The order requiring disclosure of PHI issued by Oklahoma Legislature passed a requirement in a court with jurisdiction, the covered entity 2003 that any plaintiff in a medical malpractice may comply with the order.15 A copy of a stan- action must sign a HIPAA complaint authoriza- dard order authorizing disclosure of protected tion upon the defendant’s request that permits health information used by several judges in access to all medical records of the plaintiff for Tulsa County is available online. the five-year period prior to the incident that Subpoenas is at issue in the lawsuit.12 Failure to provide a requested authorization will result in a dis- While a subpoena may be used to obtain missal of the case. Since this provision applies PHI from a covered entity, there are specific to malpractice actions, the need to seek a court rules under HIPAA that must be adhered to order or issue a subpoena to obtain a litigant’s or disclosure of the information is likely to PHI will arise in other kinds of personal injury be delayed. The quickest way to receive PHI litigation. from a health care provider is to provide a HIPAA compliant authorization form from the Core elements of a valid authorization patient or a signed court order. If a subpoena is include: a) a clear description of the informa- accompanied by either of these documents, the tion to be disclosed; b) the name or identify- PHI can be released as soon as the information ing characteristics of the person or entity requested can be reproduced. authorized to make the disclosure; c) the name or specific identifying characteristics of the A subpoena without an authorization or person(s) or entities who are entitled to receive court order requires a fairly complicated pro- the information; a description of each purpose cess to be followed before a covered entity will of the disclosure or a statement that disclosure be able to comply, especially if the PHI sought is made “at the request of the individual”; d) relates to a third party in a litigation matter. an expiration date or an expiration event that First, the attorney issuing a subpoena must relates to the individual or the purpose for give a detailed notice to the individual whose the disclosure, such as “at the conclusion of PHI is requested that the information is being

1946 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 sought. That notice must describe the litigation Qualified Protective Orders or proceeding in which the PHI is requested in The attorney issuing the subpoena for PHI sufficient detail for the individual to raise an may prefer to obtain a “qualified protective objection to the production.16 For example, the order” described at 45 C.F.R. § 164.5 12(e)(l)(v) notice should advise the individual what infor- rather than give the notice and assurance mation is requested, the identity of the health described above. However, such an order care providers who will receive a subpoena, requires a court order or stipulation by the liti- the issues in dispute in the litigation and how gants that the parties will use the PHI only in and when to file an objection. A sample form the instant proceeding and that the PHI and all that meets these requirements is available copies will be destroyed or returned to the cov- online. If the PHI sought is that of a party to ered entity at the end of the litigation. Because a the litigation, the notice of intent to issue a sub- qualified protective order requires cooperation poena may be sent to the litigant’s counsel of of the litigants or a special court order, most record who presumably can advise his or her attorneys could just as easily get an authoriza- client that the information is sought and why. tion signed by the patient or a standard court This is typically carried out by letter or a form order authorizing the disclosure of PHI. If the of notice prepared by the attorney who issued parties can- the subpoena. not agree on a After the notice is sent, the subpoe- signed autho- nas are served, and the time to file rization or any objections has passed, the attorney court order issuing the subpoena must give the cov- The attorney issuing the for disclo- ered entities from whom information is sure, the sub- sought “a written statement and accom- subpoena for PHI may prefer poena issued panying documentation” demonstrat- after sending ing that a HIPAA-complaint notice of to obtain a ‘qualified the notice fol- intent to issue the subpoena was sent to “ lowed by a the individual whose PHI is sought, the protective order’… written assur- ance of compli- ance seems to be the course preferred by many Oklaho- ma lawyers. Special HIPAA Issues that Arise in” Litigation Sharing PHI with Counsel for Co-Defendants Unless some agreement is in place with the plaintiff, co-defen- dants who are both covered enti- ties may not share PHI of the plaintiff produced in discovery. However, in some cases, there may be a working relationship between the time for filing objections has passed, and either co-defendants called an “organized health care no objections were filed or any objections filed arrangement” where both defendants provide have been resolved and the information sought health care services in an integrated setting, is compliant with the court’s ruling.17 A sample like a hospital.18 For example, a hospital and a assurance of compliance with HIPAA that member of its medical staff typically both have meets these requirements is available online. access to a patient’s PHI. Parties within an Once again, if the PHI sought is that of one of organized health care arrangement typically the litigants, this assurance of compliance is may share PHI of their mutual patients. Oth- often included in a letter from counsel. ers may not have such a relationship or agree-

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1947 ment, and require additional steps to secure CONCLUSION the PHI in compliance with HIPAA. While this article examined the most com- Counsel for each defendant may individu- mon intersections of litigation and HIPAA, ally subpoena PHI, or may seek an order from other areas of law and business affected by the court allowing disclosure between the HIPAA include guardianships, mental health attorneys for the co-defendants. If the plaintiff proceedings, financial institutions and insur- has signed an authorization granting access to ance matters. If PHI must be accessed in a his/her PHI to both defendants, attorneys may given legal matter, attorneys involved may share and discuss the PHI without violating wish to refer to the HIPAA privacy rule for HIPAA. guidance. All of the privacy rule regulations, as well as briefs and cites to cases involving Sharing PHI with Expert Witnesses various HIPAA issues can be found at www. An attorney working on behalf of a covered lawyersandhipaa.com. entity (with a valid business associate agree- ment in place) may hire an expert witness 1. See, 65 Fed.Reg. 50,312 (August 17, 2000). 2. 65 Fed.Reg. 82,462-4. 19 on behalf of the covered entity. Prior to the 3. 2 USC ‘ 1320d-6 disclosure of PHI to the expert witness, the 4. Memorandum of the United States Department of Justice dated June 1, 2005. attorney and the expert must enter into a 5. 45 C.F.R. ‘ 164.501. written agreement whereby the expert agrees 6. 45 C.F.R. ‘ 164.502(a)(2). 7. 45 C.F.R. ‘ 160.103. to be bound by all of the restrictions and 8. 45 C.F.R. ‘ 160.103. requirements found in the business associate 9. 45 C.F.R. ‘ 160.103. 10. 45 C.F.R. ‘ 164.508(a). agreement between the covered entity and the 11. 63 Okla. Stat. ‘ 1-502.2. attorney. 12. 63 Okla. Stat. ‘ 1-1708. 13. 45 C.F.R. ‘ 164.508(c)(1). Although the list of experts to whom PHI is 14. 45 C.F.R. ‘ 164.508(c)(2). 15. 45 C.F.R. ‘ 164.512(e). disclosed is generally considered to be attor- 16. 45 C.F.R. ‘ 164.512(e)(l)(ii). ney work product during the litigation, it is 17. 45 C.F.R. ‘ 164.512(e)(l)(iii). advisable to keep an accounting in your cli- 18. 45 C.F.R. ‘ 160.103. 19. 45 C.F.R. ‘ 164.504(d)(2)(ii)(D). ent records of the experts to whom you have 20. 45 C.F.R. ‘ 164.5 12(e)(l)(v)(B). disclosed an individual’s PHI. This will assist counsel in complying with the terms of a typi- cal business associate agreement. Forms discussed in this article are available online at: 1) http://my.okbar.org – Bar Jour- PHI in Pleadings nal Forms – Health Law or 2) www.oba-net. In order to include PHI in pleadings, the org – File Library – Health Law Forms. patient or his personal representative initially must sign an authorization granting access to the PHI, or the court must issue an order grant- ABOUT THE AUTHOR ing access. Including PHI in pleadings without one of these documents violates HIPAA and Teresa Meinders Burkett could cause a covered entity’s attorney to be is a partner with the Tulsa in violation of the law firm business associate office of Conner & Winters agreement. LLP. Also a registered nurse, When the litigation concludes, counsel repre- her law practice focuses pri- senting covered entities will have an obligation marily in healthcare law and to return all medical records used in the case employment law for health to the covered entity pursuant to the lawyers’ care providers. She has served business associate agreement or to destroy the as Oklahoma Health Lawyers records and send confirmation of that destruc- Association president and as tion to the covered entity client for the client’s OBA Health Law Section chairperson. She cur- records.20 Lawyers who do not represent cov- rently serves as legal counsel to numerous health ered entities do not need to return or destroy care providers across the state and advises them PHI received in litigation unless there is some regarding corporate compliance issues, including agreement otherwise. HIPAA compliance.

1948 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 The Edmond Sun , can be your source for LEACH, SULLIVAN, SULLIVAN legal publishing in Oklahoma County. & WATKINS, L.L.P. We offer fast, accurate, dependable service and competitive pricing. Affidavits will be Mourns the passing of our issued to each lawyer as well as the copy(s) we friend, colleague and partner, file with the courthouse or Corporation Commission. • E-mail documents preferred. • We accept: pdf, tiff, JPEG, Word, PAUL D. SULLIVAN WordPerfect, Rich Text, Adobe, or 1918-2007 copy and paste documents. • Published Sunday through Friday. Call or email for more information. His generosity, wisdom and selfless dedication to his family, clients and Patricia Wheat this firm will always be remembered E-mail: [email protected] 405.341.2121 Ext. 203 • Fax 405.340.7363 123 South Broadway • PO Box 2470 Edmond, Oklahoma 73083 www.okbar.org Your source for OBA news.

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Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1949 1950 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Health LAW Blanket Medical Releases and Client Privacy: The Dangers of Releasing HIPAA into the Wild By John M. Dunn and Daniel W. Crunkleton t all starts innocently enough – a request for production you’ve seen a hundred times before. It reads something to the effect Iof please execute and return the enclosed medical releases. This could be a typical request anytime your client is claiming medi- cal and/or mental damages. You don’t think too much about it, though – after all, medical records are confidential by their very nature aren’t they? Besides, hasn’t any privacy interest been waived by making a medical question an element of the case? Those releas- es, however, are nothing more than blank checks that permit the doctor to release all medical records to opposing counsel. The next thing you know, you’re in depositions your chances of recovery are diminished. Little where seemingly irrelevant (yet embarrassing) did you know, when you permitted your client to medical history is brought up. You try objecting, sign that innocent looking little medical waiver, to prevent opposing counsel from grilling your that you had sown the seed for your client’s ulti- client about the time 30 years ago when she was mate embarrassment and given opposing counsel 12 years old and had to be hospitalized following free range to divert the attention to your client’s a suicide attempt. Where are you going with this? (perhaps embarrassing) medical history. you demand to know. Opposing counsel smugly One of the hazards to releasing information responds, “You’re claiming emotional distress, I’m protected by HIPAA is the implication that a entitled to explore this matter.” The problem is, you complete waiver of one’s medical privacy has have no idea where this information came from, been waived. Blindly executing such a blanket whether it is correct or whether there may be release exposes all of the information that may be more. contained in your client’s medical history to ex Now you’re in trial in front of a jury. All of a parte scrutiny by opposing counsel. While it is sudden, opposing counsel is using this seemingly true that executing such a release relieves you of irrelevant evidence at trial to transform your cli- some of the burdens often associated with docu- ent from being the victim of a physical injury into ment production, as will be discussed below, the a hypersensitive hypochondriac who has never hazards of such a release - or even a more limited seen a day without suffering emotional distress. release, may outweigh any benefit. Additionally, When all is said and done, your client’s medical alternative methods for producing medical docu- history, not the actions of the defendant or your ments which will both fulfill a party’s obligation own legal arguments have taken center stage, and of production during discovery, while simulta-

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1951 neously protecting a client’s medical privacy Additionally, the HIPAA release may be sub- should always be considered. ject to re-disclosure to third parties,8 under the theory that once a release has been executed, HIPAA: OVERVIEW AND SCOPE any privacy interest has been waived.9 Such a Barring any written release, medical records possibility is important to plaintiffs in litigation are confidential1. The Health Insurance Por- because an opposing counsel is not a “covered tability and Accountability Act (HIPAA)2 is a entity” under 45 C.F.R. §§ 160.103 or 164.501. federal law that guarantees this medical privacy, In other words, once a blanket HIPAA release while at the same time, providing a mechanism has been properly executed and delivered to the for obtaining relevant information needed by opposing party, that party is legally able to share third parties. The codification of HIPAA has this information to third parties without further its origins in doctor-patient privilege, codified notice to the disclosing party. in Oklahoma at 12 O.S.2001 § 2503(B)(3) and THE LEGAL EFFECT OF PLACING thereby incorporated into the federal system by MEDICAL OR PSYCHOLOGICAL HEALTH Federal Rule of Evidence 501. Like other privi- AT ISSUE leges, though, medical privacy is not absolute and may be considered waived (at least par- Although it is true that when a party puts his tially) upon the initiation of a lawsuit in which mental or medical health at issue, it becomes a one’s mental or medical condition is an element proper subject of discovery, it is not true that of the claim or defense.3 However, too often a blanket releases are mandatory10 and plaintiffs plaintiff’s attorney will blindly execute a blan- should be cautious before executing them. The ket HIPAA release when requested to do so by Oklahoma Supreme Court said in Nitzel v. opposing counsel, not realizing the effect either Jackson11 (and several times since12), that there on his lawsuit or on his client’s privacy. is no requirement that a blanket release be given because the privacy interest has only been Specifically, HIPAA prevents the disclosure waived “to the extent of the condition claimed to of medical records from certain “covered enti- have been caused by the negligence of the tort- ties.”4 Under HIPAA, there are three entities feasor.”13,14 It is important to note that the Nitzel which are prevented from disclosing medical court did not say that a defendant in a personal information without permission: health plans, injury case is entitled to a medical release; only healthcare providers and healthcare clearing that the plaintiff in such a case has waived houses.5 HIPAA then permits the release of pro- privilege as it relates to the harms caused by the tected medical information only under specific tortfeasor. In other words, the defendant is not circumstances: judicial order or patient release entitled to a “fishing expedition” just because (a so-called “HIPAA release”). When a judicial a suit has been initiated. A defendant is order is used, it must specifically require a cov- only entitled to the information concerning the ered entity to release a specific piece of informa- injury claimed. By refusing to execute a blanket tion.6 The second possibility is a patient release. release, opposing counsel could attempt either Under federal regulations, such a release must to secure a court order or to narrow the scope meet the following elements:7 of request. Even if the scope is sufficiently nar- 1) The release must be voluntarily given. rowed, plaintiff can escape the risks of medical 2) It must specifically describe the informa- release, by providing the requested documents. tion to be disclosed. If defendant believes other documents exist, it can request the court to enter an order releasing 3) It must provide the subject of the disclo- that information. sure. Recently, however, the Oklahoma Supreme 4) It must provide name of the person mak- Court limited these options even further. In ing the disclosure. Holmes v. Nightengale,15 the court ruled that an 5) It must give the purpose of the disclo- order which “permit[s], rather than mandating sure. [a release] ... does not contravene HIPAA’s confi- 16 6) The expiration of the release must be dentiality requirement.” In other words, Okla- specific; and homa state law does not overrule the federal HIPAA requirements, even when a claimant’s 7) It must have the signature and date of the medical condition is in issue. Any court order person making the release. must require the release of a specific document

1952 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Attorneys should be wary of advising their clients to sign a blanket “ HIPAA release…

and does not authorize a blanket release nor ing which documents have been disclosed. The does it merely allow for the release. Therefore, receiving party becomes the “gate keeper,” by under Oklahoma law, the trial court appears being able to determine which documents are or to be without authority to force a party to are not relevant to the present case. sign a waiver of any kind.17,18 Furthermore, CONCLUSIONS since HIPAA releases must be” voluntary under federal law anyway,19 it seems unlikely that a Attorneys should be wary of advising their cli- waiver obtained at the point of a gavel would ents to sign a blanket HIPAA release, and should be considered “voluntary” and would therefore only do so in very specific circumstances. Nei- be ineffective. ther federal nor Oklahoma law require that they OBTAINING DOCUMENTS WITH OR be executed, and the Oklahoma Supreme Court WITHOUT A RELEASE has specifically held that trial courts do not have the authority to order one. The filing of a suit There are three traditional methods of obtain- in which a medical condition is at issue only ing documents, namely a request for produc- requires the disclosure of that information that tion, an informal, ex parte request of a third is relevant to the case. If a blanket HIPAA release party and subpoena dues tecum. In the case of is granted, it in essence waives doctor-client a request for production, the party seeking the privilege and opens the floodgate of potentially document asks for it from the opposing party. embarrassing information to be introduced into That party can produce the documents that it the case, explored in depositions and potentially feels is responsive to the request and object to argued at trial. Even if it is ultimately held to further production. In the case of a subpoena, be irrelevant by the court, the fact that it is even the party seeking to compel a third party to pro- mentioned is – at minimum – distracting to a duce the documents must provide notice to the jury and – at most – potentially damaging to parties involved in the litigation. Those parties your possibility of recovery. then have the opportunity to object or challenge. Further, once the documents are received, the It is true that blanket HIPAA releases could be receiving party must disclose the receipt of those more convenient to a busy attorney. Indeed, documents to the opposing counsel. The third once the blanket release is delivered, the oppos- method exactly describes the use of a HIPAA ing counsel could get any desired document release – an informal letter addressed to a cov- himself. As a result, if an opposing counsel ered entity requesting the documents and the were to seek a motion to compel discovery, patient’s release. When confronted with those there would be little room for arguing that the two items, the entity will normally simply pro- claimant has been less than forthcoming – the vide the requested information without further blanket HIPAA release is the most access to inquiry. However, there is no statutory or case documents that could possibly be given. How- law requirement that a party receiving informa- ever, attorneys should also be sensitive to the tion from an informal request must disclose it to privacy interests of their clients. A client may, in the opposite party. Moreover, a party need not fact, have episodes in their past that they would rely on the discovery process for the release of prefer to forget about – or at least not want to medical documents, however, compliance with see entered into the public record. As such, an this kind of request cannot be compelled by the attorney in this situation should make certain court.20 Therefore, it would seem that this puts that these facts – if indeed irrelevant – are given the disclosing party in the position of not know- the degree of protection that the law allows.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1953 1. 12 O.S. § 2503 (physicians and psychotherapists), 43A O.S. §1-109 health providers where no legal privilege is deemed to exist, judicial authority (mental health), 59 O.S. § 1261.6 (social workers). may not be exercised to facilitate or impede such informal communications.) 2. 42 U.S.C. § 1320d et seq. (emphasis in original). 3. 76 O.S.2001 § 19(B). See also 12 O.S. § 2503(D)(3). 19. Supra note. 4. Covered Entity Chart, Dept. of Health & Human Services, avail- 20. Johnson at ¶ 5. able at www.cms.hhs.gov/HIPAAGenInfo/Downloads/CoveredEnti- tycharts.pdf. 5. 45 C.F.R. 160.103(B)(3). 6. Holmes v. Nightengale, 2007 OK 15, ¶ 2, ___P.3d___. ABOUT THE AUTHORS 7. 45 C.F.R. § 164.508. 8. 45 C.F.R. § 164.508(c)(2)(iii) John M. Dunn is a gradu- 9. Robinson v. Lane, 1971 OK 9 at ¶ 11, 480 P.2d 620 specifically stated this in the case of testimony (“In our opinion, when a litigant testifies ate of the University of Tulsa concerning a particular ailment and its treatment, he has removed the College of Law. He is cur- reasons for the [doctor-patient] privilege. By his own conduct, he had made known to a jury and the public the ailment or disability he is suf- rently the principal member fering.”) (emphasis added). of the Law Offices of John 10. Higginbotham v. Jackson, 1994 OK 8, ¶ 0, 869 P.2d 319. (“There is no statutory discovery method contained in the Oklahoma Discovery Code M. Dunn PLLC and practices that requires a plaintiff in a personal injury lawsuit to execute in favor in the areas of civil, criminal of the defendant a general medical authorization entitling defendant to and constitutional law with a obtain all of plaintiff’s medical records.”) 11. 1994 OK 49, 879 P.2d 1222. special emphasis on litigated 12. E.g., Ellis v. Gurich, 2003 OK 47, 73 P.3d 860 and Brown v. Blevins, matters. 1998 OK 104, 986 P.2d 1218. 13. Nitzel at ¶ 1, 879 P.2d at 1223. Also, Brown at ¶ 1, 968 P.2d at Daniel W. Crunkleton is an assistant profes- 1218. 14. Ellis v. Gurich, 2003 OK 47, ¶ 2(1), 73 P.3d 860: “... the filing of a sor of chemical engineering at the University of wrongful death action is not ipso facto a waiver of the psychotherapist- Tulsa. He is also a second-year law student at patient privilege held by Plaintiff pursuant to 12 O.S.2001 § 2503.” 15. Holmes v. Nightengale, 2007 OK 15, ___P.3d___. the University of Tulsa. His legal interests are in 16. Holmes at ¶ 2, ___P.3d at ___. the areas of legal issues of concern to emerging 17. Johnson v. Dist. Ct. Okla. County, 1987 OK 47 at ¶ 5, 738 P.2d 151 at 153: “The respondent district’s order compelling discovery by ex parte technologies, including litigation and intellectual communication was in excess of its authority...” property. 18. Seaberg v. Lockard, 1990 OK 40, ¶ 3, 800 P.2d 230. (“Although the law sanctions voluntary ex parte communications with physicians and other

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Justice of the Supreme Court District One This vacancy will be created by the retirement of the Honorable Robert E. Lavender, effective August 1, 2007. [To be appointed to the office of Justice of the Supreme Court, an individual must have been a qualified elector of the judicial district applicable, as opposed to a registered voter, for one year immediately prior to his or her appointment, and additionally, must have been a licensed attorney, practicing law within the State of Oklahoma, or serving as a judge of a court of record in Oklahoma, or both, for five years preceding his/her appointment.] Application forms can be obtained by contacting Tammy Reaves, Administrative Office of the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405) 521-2450, and should be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, August 10, 2007. If applications are mailed, they must be postmarked by midnight, August 10, 2007. P. L. Pat Phelps, Chairman Oklahoma Judicial Nominating Commission

1954 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 OBA/CLE and OBA/MAP present

Acrobat for New Users: An Introduction to Adobe Acrobat 8 For Lawyers (A Telephone CLE)

DATE: September 12, 2007 TIME: 1:00 p.m - 2:00 p.m

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 1.0 hour of mandatory CLE Credit, including 0 hours of ethics. This is considered live MCLE seminar credit, not online seminar MCLE credit. Questions? Call (405) 416-7006

TUITION: $100 No discounts. Register online at www.legalspan.com/okbar/telephone.asp

CANCELLATION POLICY: Cancellations, discounts, refunds, or transfers will not be accepted.

About the Program:

PDF documents are everywhere nowadays. Attorneys and law office staff encounter the ubiquitous PDF file on a daily basis - in government forms, electronic court filings, litigation documents, electronic newsletters, and Internet downloads, to name a few. To work effectively with PDF files you need more than the free Acrobat Reader.

Objectives: This session provides an introduction to the full version of Adobe Acrobat and the basics of working with PDF files, including creating and navigating PDF files, scanning and optical character recognition, and adding bookmarks and comments to PDF files.

About David L. Masters:

A general practitioner in Montrose, Colorado, his practice focuses on real estate and business matters, transactions, and litigation. He received his J.D. from the University of Montana in 1986. David writes and speaks frequently on the use of information technology in the practice of law. His publications include The Lawyers’s Guide to Adobe Acrobat, Am erican Bar Association, Law Practice Management Section (2004) along with, numerous articles and presentations on the use of information technology in the practice of law.

Register online at www.legalspan.com/okbar.telephone.asp

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1955 1956 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Health LAW Stark for Beginners: An Introduction to the Federal Physician Self-Referral Law By Patricia A. Rogers lawyer who advises a physician about almost any aspect of his or her medical practice must have a general under- A standing of the Stark law. Put simply, the Stark law restricts a physician’s referrals of Medicare and Medicaid patients for certain health care services if the physician has a financial rela- tionship with the entity furnishing the health care services.1 Nine times out of 10 when a lawyer discusses a transaction with a phy- sician, the physician will inquire, “What about Stark?” Physicians may not know its intricacies, but they know that the Stark law affects how they practice medicine, where they can refer patients and if they can own interests in, or receive compensation from, health care entities.

Although a myriad of other federal and The penalties for violations of the Stark law state laws potentially apply to a physician’s can be severe. The government may impose financial relationship with a health care entity, civil monetary penalties of up to $15,000 per including the federal anti-kickback statute,2 claim plus three times the amount of the the Oklahoma anti-kickback law,3 the Okla- improper payment for a claim that a person homa Medicaid Program Integrity Act4 and knew or should have known was improper requirements under Oklahoma law related to and may require exclusion of the physician and a physician’s disclosure of ownership inter- entity from participation in federal health care ests,5 the starting point for a lawyer’s analysis programs.7 Additionally, the Stark law prohib- should be the Stark law. Unlike the federal and its circumvention schemes. The federal govern- state “anti-kickback” laws, which require the ment can impose civil monetary penalties of up government to establish the requisite intent to to $100,000 for such a scheme or arrangement prove a violation, the Stark law is generally a and can exclude the parties from participation strict liability statute.6 If an arrangement falls in federal health care programs.8 within the scope of the Stark law the arrange- The federal government has relied on viola- ment must satisfy an applicable exception, or tions of the Stark law as the basis for liabil- the physician’s referrals of Medicare beneficia- ity under the False Claims Act under a false ries and Medicaid recipients are prohibited. implied certification theory.9 The OIG’s Work Plan for FY 2007, with respect to physician

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1957 practices, focuses on physician billing and 1) Is a physician referring patients? The arrangements with ancillary service provid- Stark law defines “physician” to include more ers for such services as pathology, echocar- than medical doctors and doctors of osteopa- diography, physical and occupational therapy, thy. A “physician” means a doctor of medicine, and advanced imaging services (MRI, CT and doctor of osteopathy, doctor of dental surgery PET).10 In short, the federal government con- (or dental medicine), a doctor of podiatric tinues to scrutinize physicians’ financial incen- medicine, a doctor of optometry or a chiro- tives for referring Medicare, Medicaid and practor. Accordingly, any of these health care other federal health care program patients to professionals are subject to the Stark law’s certain health care entities. prohibitions. The purpose of this article is to provide a 2) Is the physician referring Medicare or framework for analyzing typical physician Medicaid patients? The Stark law applies arrangements under the Stark law. The article only to a physician’s referrals of Medicare also focuses on applying the in-office ancillary beneficiaries, including individuals who have services exception, the exception that physi- Medicare as secondary coverage, and Medic- cians rely upon to refer Medicare and Med- aid recipients.12 The Stark law does not apply icaid patients and bill for lab, x-ray, physical to a physician’s referrals for other types of therapy and other services provided within federal health care program patients, such as their practice. The article is necessarily limited TRICARE, Indian Health Service, Veterans in scope and does not provide an exhaustive Administration, Railroad Retirement Board, review of all provisions of the Stark law and Public Health Services and other federally- regulations.11 funded health programs. DOES THE STARK LAW APPLY? 3) Is the physician referring Medicare or Medicaid patients for designated health ser- The Stark law prohibits a physician from vices? The Stark law applies if a physician referring a Medicare beneficiary or Medicaid is referring Medicare beneficiaries or Medic- recipient to an entity for the furnishing of “des- aid recipients to an entity for the following ignated health services” if the physician (or an 10 categories of designated health services, immediate family member of the physician) commonly referred to as “DHS”: a) clinical has a financial relationship with the entity, laboratory services; b) physical therapy, occu- unless an exception applies. An entity that fur- pational therapy and speech-language pathol- nishes designated health services to a Medicare ogy services; c) radiology and certain other beneficiary or Medicaid recipient pursuant to a imaging services (including ultrasound, MRI, prohibited referral cannot submit claims for CT and PET); d) radiation therapy services reimbursement for those services and must and supplies; e) durable medical equipment refund all amounts collected. Hence, the Stark and supplies; f) parenteral and enteral nutri- law establishes a referral prohibition, a billing ents, equipment and supplies; g) prosthetics, prohibition and a refund obligation. orthotics and prosthetic devices and supplies; To determine whether the Stark law applies, h) home health services; i) outpatient prescrip- five questions should be considered in the tion drugs payable by Medicare Part B; and following order: j) inpatient and outpatient hospital services.13

…the Stark law establishes a referral prohibition, a billing “prohibition and a refund obligation. 1958 ” The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 The Stark regulations provide definitions of For example, if a physician administers an out- each of the 10 categories of DHS, and the defi- patient prescription drug or furnishes an item nitions should be reviewed carefully. Many of of durable medical equipment to a patient, the definitions for DHS refer to a list of proce- there is no referral. However, if the physician’s dure codes published by the Centers for Medi- employees provide the DHS rather than the care and Medicaid Services (“CMS”) every cal- physician, a referral has been made.16 endar year — the List of CPT/HCPCS Codes What if the physician directs a physician Used To Describe Certain Designated Health assistant or nurse practitioner — a non-physi- Service Categories Under Section 1877 of the cian — to refer the patient for a DHS? What if Social Security Act.14 If a physician refers a the physician controls referrals made within Medicare or Medicaid patient for a procedure his or her practice? In both circumstances, that appears on the List of CPT/HCPCS Codes, the referrals are imputed to the physician.17 the physician’s referral is prohibited unless an According to CMS, a physician who directs exception applies. Other definitions for DHS, or steers a patient to a particular provider for such as the definition for durable medical DHS has made a referral. For example, accord- equipment and supplies, refer to sections of ing to CMS, if a physician writes a prescrip- the Social Security Act or the Code of Federal tion for physical therapy that could be filled Regulations. Thus, determining whether a par- by many different providers and recommends ticular service is a DHS may require additional that the patient go to a particular physical research beyond the Stark law. therapy facility, this steering by the physician 4) Does the physician’s interaction with the constitutes a referral to that entity.18 patient constitute a referral? 5) Does the physician have one or The Stark law defines a “refer- more financial relation- ral” as a physician’s request ships with the entity or order for DHS (such as an furnishing DHS? order for laboratory tests or The referral of a patient for x-rays), a physician’s certifica- DHS does not in itself trigger tion of need for DHS (as in the application of the Stark law. case of home health services) The physician must have a or a physician’s request for financial relationship with the DHS pursuant to establishing entity furnishing the DHS. A a plan of care (such as that financial relationship is either required for physical therapy a) a direct or indirect own- or occupational therapy ser- ership or investment inter- vices). A “referral” includes a est (an “ownership interest”) physician’s request for a con- in any entity that furnishes sultation by another physi- DHS, or b) a compensation cian and DHS ordered or per- arrangement with a DHS formed by that other physician. entity. A physician may have A referral may be written, oral a financial arrangement with or electronic. a DHS entity even though However, CMS acknowl- The Stark the financial relationship is edges that certain types of entirely unrelated to the fur- physicians do not “refer” regulations provide nishing of DHS. A hospital patients, but usually provide is a DHS entity because it services to patients referred to definitions of each of provides inpatient and outpa- them. Thus, certain requests tient hospital services. A phy- or orders by pathologists, “the 10 categories of sician practice that furnishes radiologists and radiation lab, x-ray or any other type of oncologists do not constitute DHS, and the definitions DHS is a DHS entity. A home referrals.15 Additionally, if health agency, a durable med- the physician personally per- should be reviewed ical equipment supplier and a forms or provides DHS him- physical therapy center are all self, no referral has occurred. carefully. DHS entities. Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal ” 1959 An ownership or investment interest may 1) Is the physician referring patients to his be direct or indirect and may be through or her own practice? equity, debt, or other means and includes an A physician will presumably always have interest in an entity that holds an interest in 19 a compensation arrangement with his or her a DHS entity. For example, a physician who own practice and will often also have an own- holds a membership interest in a limited liabil- ership interest. The exceptions for both owner- ity company that owns and operates an MRI ship interests and compensation arrangements facility has an ownership interest in a DHS would be applicable in these circumstances. entity. However, a physician who is a member of a not-for-profit, tax-exempt organization or If a physician is referring patients to another who makes a contribution to the organization physician in his or her practice for DHS that does not have an ownership interest in the are professional services (such as a physician’s entity because the earnings of such an organi- interpretation of an MRI, CT or PET scan), the zation cannot inure to the benefit of the physi- physician services exception may be available.25 cian. CMS has stated that “ownership” relates If a physician is referring patients to his or her to a pecuniary incentive of equity owners to practice for ancillary services (lab, x-ray, MRI, enhance their investment interests.20 physical therapy, etc.) that he or she does not personally perform, the in-office ancillary like A compensation arrangement is any services exception may be available, which is arrangement involving remuneration, direct discussed in detail below.26 Additionally, if a or indirect, between a physician (or a member physician is employed by a hospital, medical of the physician’s immediate family) and the school or faculty practice plan that is part of an DHS entity.21 “Remuneration” is any payment academic medical center, the academic medical or other benefit made directly or indirectly, center exception may be available.27 All three of overtly or covertly, in cash or in kind. A com- these exceptions apply to a physician’s owner- pensation arrangement includes space and ship interest and compensation arrangement equipment leases; arrangements between a with a DHS entity. physician and a DHS entity in which the phy- 2) Is the financial arrangement with a DHS sician provides professional services, medical entity other than the physician’s practice? director services or management services; a physician recruitment arrangement between a If a physician has a financial arrangement hospital and a physician; an “under arrange- with another entity, and the financial arrange- ments” contractual joint venture between a ment constitutes an ownership interest, the physician (or physician group) and a hospital; financial arrangement must satisfy one of the and any other type of arrangement involving following exceptions: publicly-traded securi- remuneration between a physician and DHS ties, mutual funds, rural providers or hospi- entity. tals.28 As is evident, the Stark law provides very few exceptions applicable to a physician’s IF THE STARK LAW APPLIES, IS AN ownership interest in a DHS entity (other EXCEPTION AVAILABLE FOR EACH than his or her medical practice). As a practi- FINANCIAL RELATIONSHIP, AND ARE cal matter, this restricts a physician’s referrals ALL CONDITIONS OF THE APPLICABLE of Medicare and Medicaid patients to joint EXCEPTION SATISFIED? ventures providing DHS. However, the rural The Stark law establishes three categories of provider exception may be considered when exceptions: exceptions applicable to both own- analyzing a physician’s proposed arrangement ership interests and compensation arrange- with a DHS entity located outside of Oklaho- 29 ments,22 exceptions applicable only to owner- ma’s three metropolitan statistical areas. ship interests23 and exceptions applicable only If the financial arrangement with a separate to compensation arrangements.24 The Stark entity constitutes a compensation arrangement, law establishes a limited number of statutory the Stark law provides 23 different exceptions exceptions and authorizes the Department of applicable to compensation arrangements.30 Health and Human Services to create regula- Generally, if a physician has a typical compen- tory exceptions that pose no risk of fraud or sation arrangement with a DHS entity — such abuse. An analysis for finding the appropriate as employment, medical director, income guar- exception is as follows: anty, space lease, equipment lease — Stark has

1960 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 an available exception. If a physician is pro- unless the conditions of the in-office ancil- viding items or services to a DHS entity and lary services exception (or another applicable receiving compensation in return, at least three exception) are satisfied. CMS developed the exceptions may be available: bona fide employ- in-office ancillary services exception to apply ment exception, personal services arrangements to those services that are legitimately part of a exception and the fair market value (“FMV”) medical practice and ancillary to a physician’s compensation exception. The FMV compensation professional services. exception requires, among other things, that Physicians who practice independently or as the arrangement is set forth in a written agree- part of a group may avail themselves of the in- ment signed by the parties, the compensation office ancillary exception. This exception uses is consistent with FMV and not determined in the term “referring physician” which means a manner that takes into account the volume or the physician who refers the patient for DHS value of referrals or other business generated — usually, the patient’s attending or treating by the physician, and the arrangement is com- physician. As described below, with respect mercially reasonable. The FMV compensation to physicians who practice in a group, the exception is considered an all-purpose excep- requirements of the exception are much easier tion, potentially applicable to any arrangement to satisfy if the group qualifies as a “group involving a physician’s provision items or practice” under the Stark law.33 Thus, as a pre- services to a DHS entity. liminary matter, the physician group should In some cases, however, only one exception be analyzed to determine whether it qualifies is clearly applicable to a particular compensa- as a group practice. If it does not qualify as a tion arrangement. For example, if a DHS entity group practice, each element of the in-office and physician have an office rental arrange- ancillary services exception must be satisfied ment, the only applicable exception is the with respect to the individual referring physi- exception for rental of office space. The FMV cian. Another word of caution: as with other compensation exception does not apply — the Stark exceptions, the in-office ancillary ser- physician is not providing items or services vices exception includes many defined terms. to the DHS entity. If a hospital pays recruit- A member of a group practice means something ment incentives for the purpose of induc- different than a physician in a group practice.34 ing a physician to relocate to the hospital’s The Stark prohibitions on referrals and pay- service area, the only applicable exception is ment do not apply to in-office ancillary services the physician recruitment exception. Neither the that satisfy the following three conditions: FMV compensation exception nor the per- sonal services arrangement exception apply 1) Furnishing of Services. The services — the hospital is not paying the physician for must be furnished personally by one of the “physician services” (required by the personal following individuals: service arrangements exception) or for “pro- • The referring physician; viding items or services” (required by the FMV compensation exception). Most exceptions • A physician who is a member of the same require that compensation be consistent with group practice as the referring physician; “fair market value”31 and “set in advance.”32 or Each is a defined term under the Stark law. • An individual who is supervised by Accordingly, the conditions of an exception the referring physician or, if the refer- should be carefully evaluated to determine ring physician is in a group practice, by whether the exception truly applies to a another physician in the group practice, proposed arrangement and whether the provided the supervision complies with conditions of the exception can be satisfied. all other applicable Medicare payment THE IN-OFFICE ANCILLARY SERVICES and coverage rules for the services.35 EXCEPTION 2) Building. The DHS must be furnished Medical practices commonly provide lab, x- in the same building or a centralized build- ray, MRI, CT, physical therapy and other types ing. The same building means a structure or of DHS to their patients. Physicians in practic- a combination of structures that have a single es cannot refer Medicare or Medicaid patients street address assigned by U.S. Postal Ser- or bill for these “in-office ancillary services” vice and does not include a mobile vehicle,

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1961 van or trailer parked at least six hours per week. The six the building. In addition hours per week must include some to having the same street physician services that are unrelated address, “same building” to DHS. also means that all of the With respect to a referring physi- conditions of one of the cian in a group practice, if the DHS following provisions are are not provided in the “same build- satisfied: ing,” there is one more possibility • Full-time Office in — a centralized building. A “cen- the Building. a) The refer- tralized building” is a building used ring physician or his or by the group practice for a) some her group practice has or all of the group practice’s clini- an office that is open for cal laboratory services, or b) some medical services at least or all of its DHS other than clinical 35 hours per week, and b) laboratory. In addition, “centralized the referring physician or building” means that all or part of one or more members of the building is owned or leased on the referring physician’s a full-time basis (i.e., 24 hours per group practice regularly day, seven days per week, for a provides physician ser- term of not less than six months) vices to patients in the The six hours by a group practice and is used office at least 30 hours per exclusively by the group practice. week. The 30 hours must per week must include This means that time share leasing include some physician arrangements do not qualify as a services that are unrelated some physician services “centralized building.” A group to DHS. practice may have more than one “centralized building.” The option • Part-time Office in the that are unrelated “ of relying on a centralized build- Building. a) The patient ing to satisfy the building require- receiving DHS usually to DHS. ment is only available to group receives physician servic- practices. es from the referring phy- sician or members of the referring physician’s Due to concerns regarding questionable group practice, b) the referring physician or arrangements involving “pod” laboratories, referring physician’s group practice owns or which may technically comply with the cur- rents an office in the building that is normally rent definition of a centralized building, CMS open for at least eight hours per week, and has ”proposed a limitation on the definition c) the referring physician regularly furnishes of centralized building that would in most physician services in the office at least six circumstances require a) the space to be a hours per week. The six hours per week minimum of 350 square feet, and b) the group must include some physician services that are practice to permanently store 90 percent of the unrelated to DHS. equipment in the space.36 However, as of this date, CMS has not finalized the rule and has • Physician Present in Building for Refer- indicated that further study is needed.37 ral or Services. a) The referring physician is present and orders DHS during a patient visit 3) Billing. The services must be billed by one on the premises or the referring physician or a of the following: member of his or her group practice is present • The physician performing or supervising while the DHS is provided to the patient, b) the the service; referring physician or his or her group practice rents or owns an office that is normally open • The group practice of which the perform- to patients for medical services at least eight ing or supervising physician is a member hours per week, and c) the referring physi- under a billing number assigned to the group; cian or one or more members of the referring physician’s group practice regularly furnishes • The group practice if the supervising phy- physician services to patients in the office at sician is a “physician in the group practice”

1962 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 under a billing number assigned to the group theory as the basis for FCA liability, but thus far not in the context of a violation of the Stark law. See United States v. AAA Engineering & Draft- practice; ing, Inc., 213 F.3d 519 (10th Cir. 2000) (upholding the validity of a FCA claim based on a false implied certification of compliance in a case • An entity that is wholly owned by the per- involving a government contract for photography services). forming or supervising physician or by that 10. Department of Health and Human Services, Office of Inspec- tor General Work Plan for Fiscal Year 2007 available at http://oig.hhs. physician’s group practice under the entity’s gov/publications/workplan.html. own billing number or under a billing number 11. On July 12, 2007, the Centers for Medicare & Medicaid Services published proposed revisions to the Stark regulations and requested assigned to the physician or group practice; or public comment on other provisions. Except where footnoted, the proposed revisions, if adopted, would not affect the contents of this • An independent third party billing com- Article. 72 Fed. Reg. 38122 (July 12, 2007). pany acting as an agent of the physician, group 12. The Stark law expressly applies to referrals of Medicare ben- eficiaries. However, Section 1903(s) of the Social Security Act, codi- practice or entity described in the four preced- fied at 42 U.S.C. § 1396b(s), extends certain provisions of the referral ing options under a billing number assigned to prohibition to the Medicaid program. Specifically, Section 1903(s) prohibits the federal government from funding a State’s expenditures such physician, group practice or entity. for designated health services furnished to a Medicaid recipient pur- suant to a referral that would result in denial of payment under the The billing arrangement must also com- Medicare program if Medicare covered the services to the same extent ply with applicable Medicare requirements. A and under the same conditions as the state’s Medicaid plan. Since the application of the Stark law to referrals of Medicare recipients remains group practice may have and bill under more somewhat unclear, our firm’s practice group takes a conservative than one billing number, subject to any appli- position by concluding that the Stark law applies to referrals of both Medicare beneficiaries and Medicaid recipients. cable Medicare program restrictions. 13. 42 C.F.R. § 411.351 (definition of designated health services). 14. Available at www.cms.hhs.gov/PhysicianSelfReferral/11_List_ If each of the three foregoing conditions of_Codes.asp#TopOfPage. — furnishing of services, building and bill- 15. 42 C.F.R. § 411.351 (definition of referral). 16. Id. ing — is satisfied, the referring physician may 17. 42 C.F.R. § 411.353(a). refer and bill for DHS provided to Medicare 18. 66 Fed. Reg. 856, 873 (Jan. 4, 2001). 19. 42 C.F.R. § 411.354(b). The proposed revisions to the Stark beneficiaries and Medicaid recipients. regulations published by CMS on July 12, 2007 would provide that ownership and investment interests do not include an interest in a In summary, the task of evaluating an retirement plan offered by a DHS Entity to a physician or immediate arrangement or transaction under the Stark law family member as a result of the physician’s or immediate family member’s employment with the DHS Entity. 72 Fed. Reg. 38122, 38183 may appear daunting, but many of the typical (July 12, 2007). financial arrangements involving physicians 20. 63 Fed. Reg. 1659, 1707 (Jan. 9, 1998). 21. 42 C.F.R. § 411.354(c). can be analyzed in a step-by-step fashion using 22. 42 C.F.R. § 411.355. the framework outlined here. Lawyers should 23. 42 C.F.R. § 411.356. routinely advise their physician and other 24. 42 C.F.R. § 411.357. 25. 42 C.F.R. § 411.357(a). healthcare clients about the sanctions and pen- 26. 42 C.F.R. § 411.355(b). alties related to non-compliance. Once they 27. 42 C.F.R. § 411.355(e). 28. 42 C.F.R. § 411.356. On July 25, 2007, the U.S. House of Rep- understand the risks, most healthcare clients resentatives introduced legislation that, if enacted, would omit the will eagerly structure arrangements and trans- exception for physician ownership in a hospital unless the hospital is currently Medicare-certified and satisfies the other grandfathering actions to comply with the Stark law. conditions within an 18-month period, including a requirement for maximum aggregate physician ownership of 40%, maximum individ- 1. Social Security Act § 1877 codified at 42 U.S.C. § 1395nn and ual physician ownership of 2% and no expansion in beds or operating implementing regulations at 42 C.F.R. §§ 411.350-361. The “Stark rooms. H.R. 3162, 110th Cong., § 651 (2007). law” will be used in this Article to refer to both the statute and the 29. Under the rural provider exception, an ownership interest in regulations. a rural provider does not constitute a financial relationship. A “rural 2. Social Security Act § 1128(B)(b) codified at 42 U.S.C. § 1320a- provider” is a DHS entity that furnishes substantially all (not less than 7b(b). 75 percent) of DHS to residents of a rural area. A “rural” area is an 3. 63 Okla. Stat. § 1-742. area that is not an urban area. An “urban” area is an area within the 4. 36 Okla. Stat. § 6055 (disclosure of ownership interests in hos- Metropolitan Statistical Area (“MSA”) or New England County Met- pitals and ambulatory surgery centers); 56 Okla. Stat. §§ 1001-1008 ropolitan Area. According to the Office of Management and Budget, (disclosure of ownership interests in testing centers and laboratories); as of Dec. 5, 2005, Oklahoma had three MSAs: Lawton, Oklahoma City 85 Okla. Stat. § 201 (disclosure of ownership interests in healthcare and Tulsa. Additionally, the Fort Smith-Arkansas MSA includes the facilities). Oklahoma counties of LeFlore and Sequoyah. 5. 59 Okla. Stat. § 725.4. 30. 42 C.F.R. § 411.357. 6. The Stark law’s prohibition against circumvention schemes, see 31. 42 C.F.R. § 411.351 (definition of fair market value). Fair market endnote 8, includes an intent element. value means different things, depending on whether compensation 7. 42 U.S.C. § 1395nn(g)(3). relates to services or a lease of space or equipment. The Stark law 8. 42 U.S.C. § 1395nn(g)(4). A circumvention scheme is an arrange- provides a safe harbor for determining an hourly payment for physi- ment or scheme, such as a cross-referral arrangement, whereby the cian services. Satisfying the safe harbor is not mandatory, but provides physician or entity knows or should know that a principal purpose assurance that the compensation would be considered fair market of assuring referrals by the physician to a particular entity, which if value by the government. the physician directly made referrals to the entity, would constitute a 32. “Set in advance” means that the aggregate compensation is violation of the Stark law. set forth in an agreement between the parties before the furnishing 9. See e.g., United States v. Columbia/HCA Healthcare Corp., 125 F.3d of items or services for which the compensation is to be paid. “Set in 899 (5th Cir., 1997); United States v. Columbia/HCA Healthcare Corp., 251 advance” compensation may be a time-based or a per unit of service F. Supp. 2d 28 (D.D.C., 2003); United States v. Diabetes Treatment Ctrs based amount (commonly referred to as “per click”) or a specific of America, Inc., 238 F. Supp. 2d 258 (D.D.C. 2002). The U.S. Court of formula for calculating the compensation. A formula for calculating Appeals for the 10th Circuit has recognized the implied certification compensation must be described in sufficient detail so that it can be

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1963 objectively verified, and the formula may not be changed during the 36. On Aug. 22, 2006, the Centers for Medicare and Medicaid term of the agreement in any matter that reflects the volume or value Services (“CMS”) proposed a revision to the definition of “centralized of referrals or other business generated by the referring physician. 42 building” under the Stark regulations. CMS stated that certain types of C.F.R. § 411.354(d). The proposed revisions to the Stark regulations suspect leasing arrangements involving pathology services have trig- published on July 12, 2007, if adopted, would provide that space and gered the proposed amendment. Specifically, CMS described “pod” or equipment leases may not include unit-of-service based payments to “condo” laboratory arrangements in which an entity leases space in a a physician lessor for services rendered by an entity lessee to patients medical office building and then subdivides the space into separate who are referred by a physician lessor to the entity. 72 Fed. Reg. 38122, areas or cubicles. Each cubicle is equipped with microscope and other 38183 (July 12, 2007). The proposed revisions, if adopted, would also minimal laboratory equipment. The entity subleases the cubicles to limit the use of percentage compensation arrangements. Id. at 38184. physician practice. According to CMS, in one common arrangement, 33. A “group practice” is a physician practice that satisfies all of the entity hires a histologist who performs the technical component the following conditions: 1) the group practice consists of a single (preparing a slide), and makes arrangements for a pathologist to legal entity operating primarily for the purpose of being a physician read the slide and supervise the “lab.” Each physician practice pays group practice; 2) the group practice has at least two physicians who the pathologist a fee for every slide reviewed and pays the entity a are members of the group (whether as employees or owners); 3) each management fee (for the use of the pod lab and the histologist). Each physician who is a member of the group furnishes substantially the practice bills Medicare for the entire pathology service, usually at a full range of patient care services that the physician routinely fur- mark-up from what it paid to the pathologist and the entity. CMS has nishes through the joint use of shared office space, facilities, equip- determined that such arrangements may generate medically unneces- ment and personnel; 4) substantially all of the patient care services of sary biopsies and involve referrals that would otherwise be prohibited the physicians who are members of the group (at least 75 percent of under the Stark law. 71 Fed. Reg. 48981, 49055 (Aug. 26, 2006). the total patient care services of the group practice members) are fur- CMS has proposed to add the following provisions to the defini- nished through the group and billed under a billing number assigned tion of “centralized building: to the group, and the amounts received must be treated as receipts of (1) A centralized building does not include space that is owned or the group; 5) the overhead expenses of, and income from, the prac- leased by a group practice if that space is less than 350 square feet, pro- tice is distributed according to methods that are determined before vided that this minimum square footage requirement does not apply if the receipt of payment for the services giving rise to the overhead up to three group practices a) own or lease space in the same building, expense or producing the income; 6) the group is a unified business and b) share the same “physician in the group practice.” having both of the following features: a) centralized decision-making (2) A centralized building does not include space owned or leased by a body representative of the group practice that maintains effec- by a group practice if equipment needed to perform substantially all tive control over the group’s assets and liabilities (including budgets, (at least 90 percent) of the designated health services furnished in the compensation and salaries); and b) consolidated billing, accounting space in a calendar year is not permanently located in that space. and financial reporting; 7) no physician who is a member of the group 37. 71 Fed. Reg. 69623, 69688 (Dec. 1, 2006). In the proposed practice directly or indirectly receives compensation based on the vol- revisions to the Stark regulations published on July 12, 2007, CMS ume or value of referrals by the physician, except as specifically per- declined to issue a specific proposal to amend the in-office ancillary mitted under the Stark law regulations (the regulations permit certain services exception. However, CMS addressed its concern with “turn- productivity bonuses and profit shares); and 8) members of the group key” operations, including in-office laboratories, that are being mar- personally conduct no less than 75 percent of the physician-patient keted to physicians and has solicited comments regarding whether encounters of the group practice. 42 C.F.R. § 411.352. changes are necessary to limit “abusive relationships.” 72 Fed. Reg. 34. A “member of the group practice” means a direct or indirect 38122, 38181 (July 12, 2007). physician owner of a group practice (such as a shareholder), a physi- cian employee of the group practice (including a physician employed by his or her individual professional corporation that has an equity interest in the group practice), a locum tenens physician or an on-call physician while the physician is providing on-call services for mem- bers of the group practice. A “physician in a group practice” means a ABOUT THE AUTHOR member of the group practice, as well as an independent contractor physician during the time the independent contractor physician is furnishing patient care services for the group practice under a con- Patricia Rogers is an attor- tractual arrangement with the group practice to provide services to ney with McAfee & Taft in the group practice’s patients in the group practice’s facilities. Thus, a group practice may bill for the services of an independent contrac- Oklahoma City. Her prac- tor physician provided the physician furnishes those services on the tice includes advising clients premises of the group practice’s offices, but not for services provided off-site. 42 C.F.R. § 411.351. on compliance with Medi- 35. Medicare regulations provide that all diagnostic x-ray and care fraud and abuse statutes, other diagnostic tests payable under the physician fee schedule must Stark, HIPAA and EMTA- be furnished under a specific level of physician supervision: general, direct or personal. The required level of physician supervision must be LA, assisting hospitals and provided throughout the procedure. All procedures require at least the ASCs with state licensure, “general supervision” of a physician with the exception of diagnostic mammography procedures which are regulated by the Food and CONs and Medicare certif- Drug Administration. General supervision means that the procedure cation; and advising hospitals and physicans is furnished under the physician’s overall direction and control, but the physician’s presence is not required during the performance of on forming joint ventures. Ms. Roger earned a the procedure. Direct supervision means the physician must be pres- master’s degree in health policy and manage- ent in the office suite and immediately able to furnish assistance and direction throughout the performance of the procedure. Personal ment from John Hopkins University and worked supervision means a physician must be in attendance in the room in the healthcare industry before embarking on during the performance of the procedure. All levels of supervision also her legal career. require that the supervising physician be responsible for the training of non-physician personnel performing the test and maintenance of the equipment. 42 C.F.R § 410.32.

1964 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 American Idol – OBA Style An Annual Meeting Event Wednesday, Nov. 7, 2007 • 9 – 11 p.m.

• Perform one song to wow celebrity judges • Prizes for first, second & third places • Limited to 15 individuals or groups • Groups must include at least 1 OBA member • Participants provide background music on CD • OBA performers must register for the meeting

Fill out the form below. Mail to: American Idol – OBA Style, OBA, P.O. Box 53036, OKC 73152 Fax to: 405.416.7001 Scan & e-mail to: [email protected]

Name of act: ______

Your Name: ______

OBA #: ______

E-mail address: ______

If group, names of other performers: ______OBA # (if applicable) ______OBA # (if applicable) ______OBA # (if applicable) ______OBA # (if applicable) ______

Questions: E-mail [email protected]

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1965 1966 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Health LAW When Silence is Deadly: The Importance of the Credentialing Process By Margaret J. Lowery

hysician and surgeon Michael Swango is thought to have been one of the most prolific serial killers1 in U.S. his- Ptory, having murdered between 30 and 60 patients and colleagues during his medical career. One of the disputed allega- tions is whether the medical community contributed to his ability to move as a physician killer from hospital to hospital without detection under what some call a “code of silence.” As a result of such cases, hospitals are now required to credential their physi- cians and allied health professionals. “Credentialing” refers to a systematic pro- allied health professional. Every hospital owes cess of screening and evaluating qualifications a duty to use reasonable care in the screening and other credentials before a practitioner’s of physician applicants to the medical staff. initial appointment and reappointment to the This ensures that medical staff appointees pos- medical staff at a facility. It includes licen- sess satisfactory qualifications to provide care sure, required education, relevant training and and treatment to patients in accordance with experience, current competence, continuing their designated privileges.5 For a hospital to education and health status, all of which must permit a physician on its staff whom it knows be completed at initial appointment and then or should know is unqualified or negligent, every two years.2 Most states, including Okla- breaches the hospital’s duty of due care to homa, have enacted a standardized credential- its patients.6 One way of determining physi- ing form dictating what information must be cian competence in surgery is to require that gathered by hospitals during appointment and the physician perform a specified number of reappointment.3 such procedures each year. If a doctor fails to perform that number, he or she may not be While most litigants focus on the practitio- granted privileges at reappointment. ner’s act of medical malpractice in litigation, credentialing is often an overlooked area of In addition to requiring a minimum number negligence. This is due to a combination of of procedures, hospitals are also required to reasons. One reason is the strong presumption periodically review the quality of medical care that the process is subject to the “peer review” and treatment provided by medical staff mem- privilege,4 and the other reason is most attor- bers. The purpose of the review is to identify neys prosecuting such claims are unfamiliar physicians who are providing inadequate or with the process. improper care and treatment, thus permitting a timely corrective response.7 As part of the Negligent credentialing occurs when an insti- review, the hospital’s medical staff may incur a tution negligently grants privileges or creden- duty to supervise under certain circumstances. tials to a member of the medical staff or other

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1967 The physician was allegedly impaired on pain medication “ during the procedure.

For example, when a member of the medical and judgment, interpersonal skills and ability staff knows, or reasonably should know, that to perform the privileges requested.”12 When a patient is receiving improper or inadequate requested by Kadlec to provide the creden- care, an obligation to properly respond to tialing information, Lakeview provided only this situation is incurred.8 A hospital also has dates of service, with a notation that ”other a duty to report loss of privileges, medical information was not available “due to the large malpractice payments or significant clinical volume of inquiries received in this office.” events.9 While a litigant to malpractice litiga- That statement was not true, because Lakev- tion may not query the National Practitioner iew responded to other inquiries for other Data Bank for reports made on a physician, physicians. Lakeview also did not answer any it may discover whether a hospital prop- of the questions on the questionnaire, quip- erly queried the data bank before granting the ping that it was “part of its standard business physician privileges. practice.” About a year later, Dr. Berry was the anesthesiologist during a tubal ligation surgery Recently, courts have construed an affirma- which resulted in significant brain damage to a tive duty on hospitals to truthfully and affir- patient. The physician was allegedly impaired matively disclose all problems experienced on pain medication during the procedure. The 10 by medical staff during a physician’s tenure. family of the injured patient sued and settled The failure to accurately report problems with for $7.5 million. In an effort to recover their a physician to a facility which is inquiring losses, Kadlec sued Lakeview for fraud and during the credentialing process resulted in misrepresentation during the credentialing a judgment against the facility for fraud and process. Kadlec successfully obtained a $4.1 misrepresentation. In Kadlec Medical Center v. million dollar verdict. Lakeview Anesthesia Associates11 the court held that the healthcare provider’s duty not to dis- While no Oklahoma decision has addressed close inaccurate, incomplete information was a facts identical to those of the Kadlec decision, matter of public safety. other jurisdictions have held that a hospital has a duty to report a physician to the National The physician in Kadlec, Dr. Berry, was ter- Practitioner Data Bank if the physician’s privi- minated by the anesthesia group after he was leges were allowed to lapse while the physi- found sleeping in a chair and having failed to cian is under investigation or peer review. The respond to numerous pages over a 24-hour courts have construed that the lapse of medi- period. Dr. Berry was also suspected of divert- cal staff privileges amounts to a “surrender” ing the pain killer Demerol. The anesthesia of privileges for purposes of mandatory data group terminated his employment that day bank reporting.13 Nor, is the hospital complete- and his privileges were allowed to lapse at ly immune from claims by the physician whose Lakeview Regional Medical Center. After Dr. privileges were revoked or suspended. In order Berry’s privileges expired, he secured employ- for a physician to have qualified immunity, the ment at Kadlec on a locum tenens basis through physician must demonstrate compliance with an agency. Before Dr. Berry started practicing the statutory conditions of the Professional medicine at the facility, Kadlec sent a let- Review Bodies — Protection from Liability ter to Lakeview Regional requesting, among Act.14 Credentialing is an important function other things, 1) “evidence of current compe- by both the medical staff and hospitals which tence to perform the privileges requested” ensures quality of medical care and to protect and 2) “a candid evaluation of [Dr. Berry’s] patients from physicians whose credentials training, continuing clinical performance, skill, do not meet acceptable standards of care. The

1968 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 court in Kadlec was correct that proper cre- hospital when she allowed her medical staff privileges at the hospital to lapse. The lapse was considered an element under Health Care dentialing is a matter of public safety, for no Quality Improvement Act (HCQIA) which required the health care hospital or medical staff should silently allow entity to make a report to the National Practitioner Data Bank. 14. 76 O.S. 2001 §25. See also, Smith v. Deaconess Hospital, 2007 a “Dr. Swango” to move from facility to facility OK 45.) murdering patients. As Lakeview discovered, “silence in credentialing is now golden.” ABOUT THE AUTHOR 1. He was accused of fatally poisoned at least 30 (and up to 60) of his patients and colleagues resulting in a sentence of life imprisonment without the possibility of parole. OBA member Margaret 2. The Health Care Quality Improvement Act of 1986, as amended Lowery is general counsel 42 USC §11101. for Memorial Hospital in 3. 363 O.S. §1-106.2 4. 63 O.S. §1-1709. In Funderburk v. Peterson, 1999 OK 37, the court Belleville, Ill. Her practice held that “materials tending to show facts that were known or know- is primarily concentrated in able about the physician’s level of skills are discoverable.” 5. Both the Health Care Quality Improvement Act and Medical health care litigation as well Staff Bylaws Rules and Regulations generally define this duty. as management of the hospi- 6. Stubhart v. Perry Memorial Hospital Transit Authority, 1995 OK 10. tal system’s self insurance and 7. Id. captive insurance program. 8. Id. 9. Reports are made to the National Practitioner Data Bank pursu- She is admitted to practice in ant to the Health Care Quality Improvement Act of 1986. Illinois as well as before the U.S. Supreme Court 10. 225 ILCS 60/23(A); 42 USCA §§11133(a)(1)(A), (a)(1)(B). and the U.S. District Courts for the Northern 11. Kadlec Medical Center v Lakeview Anesthesia, 2005 WL 1309153 (E.D.La.). District of Oklahoma and the Southern District 12. Kadlec Medical Center v Lakeview Anesthesia, 2005 WL 1309153 of Illinois. She received her B.A. from SMU and (E.D.La.). 13. In Diaz v Provena Hospitals, 352 Ill App 3d 1165, 817 N.E.2d 206, her J.D. from TU. 288 Ill Dec 81 (Ill.2d 2004) a physician was “under investigation” by

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1969 BAR NEWS

Bar Center Renovations Begin

Project Description. Complete remodeling of original Oklahoma Bar Center building built in 1961-1962, which includes the basement and two floors. Asbestos encapsu- lated around pipes in the basement will be removed. Extent of Project. Total renovation involving removal of an elevator and central stairwell, reconfigu- ration of all offices and relo- cation of board room. The OBA president will have a small conference room with a view of the State Capitol instead of an office. Cur- rent and future technology needs are part of the design concept for the new space. Square Footage. 15,933 sq. ft. Architects. K & W Architects, Oklahoma City OBA Departments Moved to Modular Space. Administration, Ethics Counsel, Executive Director, Information Services, Management Assis- tance Program, Mandatory Continuing Legal Education and Public Information, plus the Okla- homa Bar Foundation. Changes During the Interim. Less parking spaces in the OBA lot. Old Lincoln Boulevard entrance closed. Access to employees in modular space is through the main entrance on 18th Street. Phone and fax numbers remain the same. Project Oversight:. OBA Bar Center Facilities Committee and Executive Director. Date Project Began. July 27, 2007 Projected Completion Date. May 1, 2008 (maybe sooner since it’s interior work - keep your fingers crossed). More photos are available at www.okbar.org.

1970 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 BEST

Recognize the best of the best. Honor someone by nominating them for an OBA award. Awards will be presented at the Annual Meeting to be held Nov. 7-9, 2007 in Oklahoma City.

Nomination Deadline: August 13

More details on the nomination process at www.okbar.org

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1971 PHOTO HIGHLIGHTS

Sovereignty Symposium XX Oklahoma City • May 30 & 31, 2007

Lt. Gov. Jari Askins with members of the Vietnam Era Supreme Court Chief Justice James Winchester (left) Veterans Intertribal Association color guard. and keynote speaker Dr. Mark Plotkin lead the opening ceremony processional.

Faye Hadley, Justice Tom Colbert, Frank Marley III and Terri Calloway lead the Native Peoples and the Media panel.

Ponca Nation Chairman Dan Jones talks with Dr. Mark Plotkin. Justice Rudolph Hargrave

Bill Anoatubby, John A. Barrett, Stephen Beam, John Morris Williams and Drew Edmondson at the O’Connor ceremony.

Jean Barnes and retired Justice Don Barnes

1972 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Judge Robert Henry and Thompson Williams greets retired Justice O’Connor retired Justice O’Connor and Judge Henry. honor the flag.

Retired U.S. Supreme Court Justice Sandra Day O’Connor and Oklahoma Sen. Richard Lerblance.

Suzuki violinists perform at the reception.

Leading a session on international law are (from left) Giovanna Gismondi, Lindsay Robertson, Justice Marian Opala, Taiawagi Helton and Margaret Stephenson.

Sovereignty Judge Noma Gurich and her husband John Miley dance at Symposium the anniversary gala.

Vol. 78 — No. 21 — 8/4/2007 XXThe Oklahoma Bar Journal 1973 PHOTO HIGHLIGHTS

OBA Solo & Small Firm Conference June 21-23, 2007 • Tanglewood Resort at Lake Texoma

OBA President Stephen Beam with Melissa DeLacerda and Vice President Jack Dawson.

Keynote speaker Jay Foonberg

The 10th annual conference set attendance-breaking records.

Board member Deb Reheard became part of the magician’s act.

SSF Conference Planning Committee Vice Chair Chris Henthorn (left) and Chair Roger Reneau (center) are The winning team of the recognized for their leadership by President Stephen Beam. Friday golf scramble.

1974 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 BAR NEWS

2008 OBA Board of Governors Vacancies Nominating Petition Deadline: 5 p.m. Friday, Sept. 7, 2007

Vacant positions will be filled at the OBA Annual OFFICERS Meeting Nov. 7 - 9. Terms of the present OBA President-Elect officers and governors listed will terminate Dec. 31, Current: J. William Conger, Oklahoma City 2007. Mr. Conger automatically becomes OBA president Summary of Nominations Rules Jan. 1, 2008 (One-year term: 2008) Not less than 60 days prior to the Annual Meet- Nominee: Jon K. Parsley, Guymon ing, 25 or more voting members of the OBA within the Supreme Court Judicial District from which the Vice President member of the Board of Governors is to be elected Current: Jack S. Dawson, Oklahoma City that year, shall file with the Executive Director, a (One-year term: 2008) signed petition (which may be in parts) nominating Nominee: a candidate for the office of member of the Board of Governors for and from such Judicial District, or one BOARD OF GOVERNORS or more County Bar Associations within the Judicial District may file a nominating resolution nominating Supreme Court Judicial District Two Current: Michael W. Hogan, McAlester such a candidate. Atoka, Bryan, Choctaw, Haskell, Johnston, Lat- Not less than 60 days prior to the Annual Meeting, imer, LeFlore, Marshall, McCurtain, McIntosh, 50 or more voting members of the OBA from any Pittsburg, Pushmataha and Sequoyah counties or all Judicial Districts shall file with the Executive (Three-year term: 2008-2010) Director, a signed petition nominating a candidate Nominee: Jerry L. McCombs, Idabel to the office of Member-At-Large on the Board of Governors, or three or more County Bars may file Supreme Court Judicial District Eight appropriate resolutions nominating a candidate for Current: R. Victor Kennemer III, Wewoka this office. Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, Payne, Pontotoc, Pottawatomie and Not less than 60 days before the opening of the Seminole counties Annual Meeting, 50 or more voting members of the (Three-year term: 2008-2010) Association may file with the Executive Director a Nominee: signed petition nominating a candidate for the office of President-Elect or Vice President or three or more Supreme Court Judicial District Nine County Bar Associations may file appropriate Current: Dietmar K. Caudle, Lawton resolutions nominating a candidate for the office. Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman counties In addition to the above methods, nominations to (Three-year term: 2008-2010) any of the above offices shall be received from the House of Delegates on a petition signed by not less Nominees: W. Mark Hixson, Yukon than 30 delegates certified to and in attendance at O. Christopher Meyers II, Lawton the session at which the election is held. Member-At-Large See Article II and Article III of OBA Bylaws for Current: Robert B. Sartin, Tulsa complete information regarding offices, positions, (Three-year term: 2008-2010) nominations and election procedure. Bylaws are Nominee: Jack L. Brown, Tulsa printed in the OBA 2007 Reference Guide (OBJ Vol. 78, No. 4 January 27, 2007) and election information appears on pages 251-253.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1975 BAR NEWS

OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)

BOARD OF GOVERNORS BOARD OF GOVERNORS SUPREME COURT JUDICIAL DISTRICT TWO MEMBER-AT-LARGE JERRY L. MCCOMBS, IDABEL JACK L. BROWN, TULSA Petitions have been filed nominating Jerry L. Petitions have been filed nominating Jack L. McCombs for election of the Board of Gov- Brown for election of the Board of Governors ernors representing Supreme Court Judicial representing Members at Large of the Okla- District 2 of the Oklahoma Bar Association for homa Bar Association for a three-year term a three-year term beginning January 1, 2008. beginning January 1, 2008. A total of 44 signatures appear on the A total of 143 signatures appear on the petitions. petitions. County Bar Resolutions Endorsing Nominee: Choctaw, McCurtain, LeFlore and Pushmataha County

L Not all problems are black and white… A W If you need help coping with emotional or psychological stress, Y please call HE LPING 1 (800) 364-7886

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1976 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 FROM THE EXECUTIVE DIRECTOR

Time Flies - Even When You’re in a Modular Office By John Morris Williams

While I was cooking out yesterday it dawned on me that it was the 4th of July. (Yes, I wrote this article a month ago, while moving to our temporary quarters was looming.) Of course, I knew it was Indepen- dence Day. What I was really thinking was “where has half of this year gone?” I have heard when you get older time flies. It really does. For more than four years we have been in the planning process for the major remodel we are about to begin. Demolition of the inte- rior space of the bar 45 years, at times it seems to We chose to use the modu- center’s east building began have moved pretty quickly lar space so that we could on July 27, 2007. While clear- but the last four years have keep all the operations in ing out some old files we are really been what seems like one location. Because of our moving, I found an article the blink of an eye. open stairwells in the origi- nal building, the abatement that stated the OBA occupied My worry is that the of asbestos requires that all the original structure on July next year may not move so persons in the affected area 27, 1962. Exactly 45 years to quickly during our remodel. be vacated. Thus, we are not the day, we began the pro- We are working really hard able to do the work in incre- cess of a major remodel. As not to lower member service. ments. I think back about where I However, moving 20 people was on July 27, 1962, I can’t to modular offices in the My experience with con- remember the details, but I west parking lot does not struction is that everything was 4 years old. Down on seem to me to be something takes longer and costs more the ranch the news did not that will enhance member than expected. Our goal is get to me that my future pro- service. The best I can hope to have us on schedule and fessional association had just for is that we will not be under budget. I have no rea- occupied a brand new build- down long. Please be patient son for my optimism other ing on Lincoln Boulevard. with us during this time. than the fact we are about Looking back over the last

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1977 to wade off into deep water, and I see no other choice but to make it to the other side safely. In the Oklahoma Bar Journal meantime I will be out back Editorial Calendar in a modular office pacing and worrying about all this. Other than some parking spaces being taken up by the 2007 2008 units, we hope our members n September n January will not be too inconve- Bar Convention Meet Your OBA nienced. The Lincoln street Editor: Carol Manning Editor: Carol Manning exit will be closed. Everyone n October n February will need to enter through Education Law Real Estate Law the south entrance and check Editor: D. Renée Hildebrant Editor: John Munkacsy [email protected] [email protected] in with the receptionist. If Deadline: May 1, 2007 Deadline: Oct. 1, 2007 you need to see one of us refugees, we will come meet n November n March Diversion Programs Pretrial Litigation you at the front desk. For Editor: Judge Lori Walkley Editor: Julia Rieman safety purposes we would [email protected] [email protected] appreciate that no one ven- Deadline: Aug. 1, 2007 Deadline: Jan. 1, 2008 ture out to the temporary n December n April offices unattended. Ethics & Professional Law Day Responsibility Editor: Carol Manning Having admitted all my Editor: Melissa DeLacerda n fears, it really is an exciting [email protected] May time at the OBA. I hope a Deadline: Aug. 1, 2007 Work/Life Balance Editor: Jim Stuart year from now that we have [email protected] an updated space that will Deadline: Jan. 1, 2008 not only enhance member n August service but one that you Insurance Law enjoy coming to. Please be Editor: Judge Lori Walkley mindful of the disruption [email protected] this has caused for our staff Deadline: May 1, 2008 and be appreciative of the If you would like n September positive spirit they demon- to write an article Bar Convention strate. It is my prayer that Editor: Carol Manning on these topics, this time will pass quickly n October for them, too, as they work contact the editor. Guardianship in temporary quarters. Editor: Stephen Barnes [email protected] P.S. We are now moved Deadline: May 1, 2008 into modular space, and it is n November not bad at all. In fact, some Technology/Practice of us actually are enjoying Management the new digs! Editor: Melissa DeLacerda [email protected] Deadline: Aug. 1, 2008 n December Ethics & Professional Responsibility Editor: Martha Rupp Carter [email protected] Deadline: Aug. 1, 2008 To contact Executive Director Williams, e-mail him at [email protected]

1978 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 LAW PRACTICE TIPS

Closing Files, Destroying Files and Making Money By Jim Calloway, Director, OBA Management Assistance Program

When I was a young law- last 10 years was an interest- While I would like to yer starting my own practice, ing experience, to say the be able to give a clear-cut a more experienced lawyer least. This reinforced my answer to this question, the asked me if I was making belief that lawyers are going correct answer is that in any money. I responded that to have to switch from a pri- Oklahoma there is no specific I had opened five new files mary paper-based file system “controlling legal authority” the previous week. “Son,” to a digitally-based file sys- on this issue. OBA General he replied, “you don’t make tem in the very near future. Counsel Dan Murdock has money opening files. You Growing your practice need written on several occasions make money closing files.” not mean a growing number that in the absence of specific So hopefully readers will of storage cabinets. In the controlling legal authority, understand that they, too, are “good old days,” a lawyer he looks to Oklahoma Rules making money when they might be able to store an of Professional Conduct Rule properly close old client files. entire year’s worth of closed 1.15 that requires that trust How to close client files files in a few banker’s boxes. account records must be and manage closed client Now a single client matter maintained for a minimum files is a subject of frequent might take up numerous of five years after termina- inquiry to the OBA Manage- banker’s boxes. This means tion of the representation. So ment Assistance Program. that no longer can the law- it would seem that a similar This month we will deal with yer treat destruction of the rule should apply to closed the closing and destruction old client files as something client files. This always of physical paper client files, “that my executor can worry seemed like a logical conclu- even as many law offices are about.” sion to me. continuing to make the tran- This line of reasoning has sition to rely more on digital So let’s concentrate on clos- ing paper files and making been around for a while. In client files then paper client January 2000, Oklahoma City files. good decisions about their ultimate destruction. No mat- attorney Mark A. Robertson I must note that most law ter where you are headed in and I wrote “Case Closed!!! offices should be at least con- terms of digital client files in Now What Do I Do with the sidering their transition to the future, most every lawyer File?” where we adopted the files that are primarily digital who has had a law practice same idea. http://tinyurl. files. The costs, in both time for very long at all now has a com/36fvrk A form file clos- and money, of doing in the collection of closed paper cli- ing letter was included with same old way are going to ent files. the article and is still avail- continue to increase. able online. HOW LONG MUST A This article is being com- LAWYER RETAIN CLOSED I now often tell lawyers pleted from my new office CLIENT FILES? that it may be better to use a location in the OBA tempo- six-year rule so that nobody rary housing module. Hav- The most commonly asked gets confused. Most lawyers ing the “opportunity” to go question about this topic is store their closed files by cal- through every single item “how long am I required to endar year. So it may appear that had been stored over the retain closed client files?” that the files you closed in the

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1979 year 2000 are ripe for destruc- people’s minds and the client tion in 2005. But in reality the is available. file that you closed Dec. 31, 2000, should not be destroyed All documents or other until at least Jan. 1, 2006. So it material that need to be may be easier to refer to it as returned to the client should a six-year rule. be returned at the time the file is closed. The firm should Of course there are always have policies about when exceptions to this rule. photocopies should be made We will discuss those in a or receipts are to be signed by moment. As noted in the pre- the client. viously cited article, several OBA-NET members indicated But you do not want to in an online discussion that review the file five years they thought 10 years was later and find that it there are a better time frame. Since important originals that must that article was written, the be returned to the client. Missouri Supreme Court has This is why a lawyer, or at adopted a 10 year “safe har- the very least an experienced bor” file destruction rule. legal assistant, must review the file when it is closed. BEGIN AT THE BEGINNING Although the law firm should have a clear written Some of the most impor- policy on file destruction, it is tant aspects of law firm file Although the law still up to a lawyer within the closing and file destruction firm to make the final call on policies and implementation firm should have a clear whether any particular client occur well in advance of the file falls within the policy or time to do those tasks. written policy on file is “an exception to the rule.” There are many items that A clear exception would be should be included in the “destruction, it is still up for files that have tasks or attorney retainer agreement implications extending past or the initial documents that to a lawyer within the the five-year period. The are provided to the client at best example is a friendly suit the beginning of representa- firm to make the involving a minor plaintiff. tion. A very important one If a distribution of proceeds is the firm’s file destruction final call… is due to a minor plaintiff policy. It should be an office upon reaching majority in practice to notify the client 10 years, the law firm would in writing of the law firm’s done at that time. The client certainly not want to destroy file destruction policy at the should receive a file closing the file after five years, even beginning of the representa- letter that outlines several if the firm was not going to tion. matters. (See previously cited be involved further. In those One does not want to wait article.) Among those matters” cases the best practice is to until years after the represen- should be a restatement of retain the file until at least tation has concluded, when the file destruction policy that two years after the minor the client may have moved was originally communicated plaintiff reaches majority and and left no forwarding to the client. some will opt for five-year address, to attempt to notify retention after the age of Preparation for all aspects majority. clients about file destruction. of file destruction must take PREPARING A CLIENT place at the time that the file A lawyer might decide, FILE FOR DESTRUCTION is closed. One of the big- as a general rule, to retain gest mistakes in closing files probate files that affected When a file is closed, all that law firms fail to do is the title to real property of the decisions about file prepare for the ultimate file for a longer period. Wills destruction and actions that destruction right at the time and estate plans might be need to be taken should be when everything is fresh on another situation where the

1980 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 files should be kept for an Generally speaking, they can that are the exception to the extended period. One would just be destroyed. In my view, standard office policy. hate to receive a subpoena to there is no need for an addi- testify in a will contest pro- tional notice to the client five The most simple solution ceeding a few months after or six or 10 years later after is just to store them with the you have destroyed the file they have been notified sev- other files that were closed and any notes that one might eral times of the policy and that year until it is time to have taken. Even though we had their entire set of original destroy the rest of the files. believe it has become a busi- or needed documents given The potential problem with ness necessity to implement to them. that approach is that someone a file destruction policy, I may fail to go and remove certainly still recognize that CLOSED FILE STORAGE them before the rest of the files are destroyed. If you’re there may be files that fall When I was in private into the “keep forever during going to operate this way, practice, it was generally the then I suggest that you make my lifetime” category. (I’ll practice to keep the previous leave it to the experts to opin liberal use of a highlighter or years closed files stored in the perhaps even use a colored over whether and how long office. It seemed that there an estate planning file might paper wrapper to make it was a fairly frequent need clear which file or files in a need to be retained after the to examine those files. After- lawyer’s death.) particular box are not to be wards we utilized an off-site destroyed with the rest. I Adoption files are another storage facility. also think it would be a pru- special case. Title 10, Section Closed files should be dent practice to write on the 7508-1.1 provides: stored in such a way that outside of the box that there were files contained there that “All records of any adop- they are available for retrieval should be removed before the tion finalized in this state prior to destruction and the others are destroyed. shall be maintained for intended destruction date is twenty-two (22) years by either the box in which the The other method is to the child-placing agency, file is stored or the file itself. store the files with a different entity, organization or In fact, there are now com- destruction date separately. person arranging or facili- mercial services that for a flat Then it would probably make tating the adoption. fee will hold your files for the sense to place a blank file designated amount of time folder with the client name Other special situations might and then securely destroy on the tab in the place where include a particularly difficult them as scheduled. Until the the file normally would have client, a very hotly contested files are destroyed, you’re been, which indicates where matter or where an oppos- free to have access to them. that particular file is located. ing party has had a history of making untrue statements Closed client files should Either method works and, about the lawyer’s conduct. be kept in a secure location. as you can see, either method It should go without saying has its potential for problems. The final aspect of file that most of these files will But with attention to detail, closing is for someone to contain confidential client the process can be made easy sign and date that they have communication that the law- and painless. reviewed the file and indicate yer has a duty to protect. the appropriate file destruc- I hope you have benefited tion date. This can, and prob- An index should be main- from this discussion of clos- ably should, be done on the tained of the box where ing and destruction of client outside of the file, although each closed file is stored. files. Closing files really is many firms prefer to also This index likely needs to be about making money. Prop- keep a log that is retained retained for a very long time, erly closing files is also about after the files had been even after the files have been not building up a future destroyed. destroyed. It can be very liability of time debt that will helpful when a former cli- have to be paid off at some The nice thing about going ent comes in and is incorrect point – whether by you or through this process when about the year in which they your heirs. the file is closed is that there were represented. is little additional work that needs to be done when it Some thought needs to be is time to destroy the files. given to the location of files

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1981 ETHICS PROFESSIONAL RESPONSIBILITY

ORPC Changes at a Glance By Gina Hendryx, OBA Ethics Counsel

Amendments to the Okla- the client. The lawyer shall lawyer will charge a regu- homa Rules of Professional promptly inform the client larly represented client on Conduct as approved by of any decision or circum- the same basis or rate. Any the Oklahoma Supreme stance which requires the changes in the basis or rate Court will become effective client’s informed consent of the fee or expenses shall Jan. 1, 2008. These changes and shall reasonably consult also be communicated to the were prompted by extensive with the client about the client. The contingent fee updates to the ABA’s Model means by which the client’s agreement shall be in writ- Rules of Professional Con- objectives are to be accom- ing and signed by the client. duct. The current Oklahoma plished. Comment [4] states The contingent fee agreement rules are based substantially that when a client makes a must clearly notify the client on the ABA Model Rules and reasonable request for infor- of any expenses for which the the adopted amendments mation, prompt compliance client will be liable whether reflect these updates as well is required from the law- or not the client is the prevail- as current Oklahoma modifi- yer. However, if a prompt ing party. cations. response is not feasible, the This rule permits division The following is a brief lawyer or a member of the of a legal fee between law- summary of a few of the rule lawyer’s staff shall acknowl- yers who are not in the same changes. edge receipt of the request firm. The division may be and advise the client when made if it is in proportion to Rule 1.2 Scope of a response may be expected. the services performed by Representation and Client telephone calls should each lawyer or if each lawyer Allocation of Authority be promptly returned or assumes joint responsibil- Between Client and Lawyer acknowledged. ity for the representation. Language from the model Rule 1.5 Fees The client must agree to the rule was added to permit arrangement and the agree- a lawyer to take action on A lawyer shall not make ment must be confirmed in behalf of the client that is an agreement for, charge or writing. Joint responsibility impliedly authorized to carry collect an unreasonable fee for the representation entails out the representation. A law- or an unreasonable amount financial and ethical responsi- yer may also limit the scope of expenses. The scope of bility for the representation as of the representation if the the representation and the if the lawyers were associated limitation is reasonable under basis or rate of the fee and in a partnership. the circumstances and the cli- expenses for which the client Rule 1.6 Confidentiality of ent gives informed consent. will be responsible shall be Information communicated to the client, Rule 1.4 Communication preferably in writing, before There will be significant This amended rule clari- or within a reasonable time changes to this rule as of fies and specifies a lawyer’s after commencing the repre- Jan. 1. Rule 1.6 governs the duty to communicate with sentation, except when the disclosure by a lawyer of This amended rule clarifies and specifies a lawyer’s duty to communicate with the client. “1982 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007” information relating to the sentation involves a concur- 1.8(j) adds language that representation of a client. The rent conflict of interest with expressly prohibits sexual new amendments permit an limited exceptions. A concur- relations between a lawyer attorney to disclose informa- rent conflict of interest exists and a client unless: (1) a con- tion in certain circumstances if the representation of one sensual sexual relationship to prevent reasonably certain client will be directly adverse existed between them when death or substantial bodily to another client. If the rep- the client-lawyer relationship harm, to prevent the client resentation meets one of the commenced and (2) the rela- from committing a crime or exceptions, each affected cli- tionship does not result in a a fraud that is reasonably ent must give informed con- violation of Rule 1.7(a)(2). certain to result in substan- sent, confirmed in writing to The full text of these and tial injury to the financial or the representation. all the amendments can be property interests of another Rule 1.8 Conflict of found at www.okbar.org/ in furtherance of which the Interest: Current Clients: ethics/ORPC. Further infor- client has used the lawyer’s Specific Rules mation on additional rule services. The rule will also amendments will be sum- permit disclosure of confi- Amendments to Rule marized in the October and dential information so that 1.8 include language in (c) December Oklahoma Bar Jour- the lawyer may obtain advice clarifying who are “related nal theme issues. on the lawyer’s compliance persons” for the purpose of with the Rules of Professional preparing instruments giving Have an ethics question? It’s a Conduct. the lawyer or a person related member benefit, and all inquiries to the lawyer a substantial are confidential. Contact Ms. Rule 1.7 Conflict of Interest: gift. Rule 1.8 will permit a Hendryx at [email protected] or Current Clients lawyer to pay court costs and (405) 416-7083; (800) 522-8065. Rule 1.7 prohibits repre- litigation expenses on behalf senting a client if the repre- of an indigent client. Rule

Effective September 15, 2007 electronic case filing shall be mandatory for all attorneys in the U. S. District Court for the Eastern District of Oklahoma. Section IV(B) of the Court’s Administrative Guide sets out the exceptions to the required procedure for electronic filing. To sign up for electronic filing in the Eastern District, complete the registration form located on the CM/ECF page of our web site located at www.oked.uscourts.gov. To obtain a login, attorneys must attend a CM/ECF training course in the Eastern District of Oklahoma or provide proof of such training from another Court. Attorneys and their staff can sign up for training classes through our automated class scheduler on the CM/ECF web page. Questions regarding mandatory attorney filings should be sent to [email protected].

Feel like you’ve painted yourself into a corner? If you need help coping with emotional or psychological stress, please call 1 (800) 364 - 7886 Lawyers Helping Lawyers Before it’s too late.• Confidential.• Responsive. • 24/7

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1983 BOARD OF GOVERNORS ACTIONS

July Meeting Summary The Oklahoma Bar Association Board of Governors met at the Oklahoma Bar Center on Friday, July 20, 2007. REPORT OF THE REPORT OF THE State Legal Referral Ser- PRESIDENT EXECUTIVE DIRECTOR vice Task Force Meeting at the Bar Center. He was not President Beam reported Executive Director Wil- present at the June meeting he attended the Solo and liams reported he attended because he represented the Small Firm Conference, the PACE dinner and recep- OBA at the State Bar of Texas Oklahoma Bar Foundation tion, monthly staff celebra- annual meeting in San Anto- meeting, PACE reception tion, directors meeting to nio. Governor Christensen hosted by the OBA LRE plan the relocation, Bar reported she attended the Department, State Bar of Center Facilities Committee Solo and Small Firm Confer- New Mexico annual meeting meeting and a meeting with ence, June board meeting, at the Inn of the Mountain the architect and the deco- OBA Bar Center Facilities Gods, OBA Annual Meet- rator. He also spoke to the Committee meeting, OBA ing Task Force meeting and PACE participants at their Bench and Bar Committee Custer County Bar Associa- opening session. His efforts meeting, Bench and Bar sub- tion meeting. He met with a have been focused on details committee meeting regarding YLD representative about the involved in orchestrating the revision of the Model Code Wills for Heroes program, move of bar employees to of Judicial Conduct and OBA spoke at the PACE dinner the modular space. Audit Committee meeting. and worked on the executive She also participated in OBA director’s evaluation. BOARD MEMBER REPORTS Women in Law Commit- REPORT OF THE VICE tee discussions regarding PRESIDENT Governor Bates reported the annual Women in Law she attended the Solo and Conference to be held at the Vice President Dawson Small Firm Conference, June Skirvin Hotel on Sept. 27, reported he attended the board meeting, OBA State 2007. Governor Dirickson Solo and Small Firm Confer- Legal Referral Service Task reported she attended the ence and presented one of Force meeting and OBA Solo and Small Firm Confer- the CLE sessions. He worked Work, Life Balance Commit- ence, June board meeting on Mentor Task Force, tee meeting. She made calls and Custer County Bar Asso- Advertising Task Force and to Canadian, Comanche, ciation luncheon. She partici- Bar Center Facilities Com- Pittsburg, Pottawatomie and pated in phone discussions mittee business. Seminole bar associations with the Lawyers Helping REPORT OF THE encouraging them to submit Lawyers chairperson con- PRESIDENT-ELECT OBA award nominations. cerning the proposed CLE She assisted the Oklahoma for the annual convention. President-Elect Conger County Bar Association in Governor Farris reported he reported he attended the its awards work. Governor attended the Solo and Small Solo and Small Firm Confer- Caudle reported he attended Firm Conference, June board ence, June board meeting, the May Board of Governors meeting, two OBA Legal OBF Trustee meeting and dinner and reception with Intern Committee meetings, a meeting with Executive the Creek County Bar Asso- Tulsa County Bar Founda- Director Williams and the ciation, May board meeting tion meeting and OBA Audit architect. He also chaired the and Comanche County Bar Committee meeting. Gover- Bar Center Facilities Com- Association CLE and bar nor Hermanson reported he mittee meeting. luncheon. He chaired the attended the Solo and Small

1984 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Firm Conference and June Attorney Experience semi- ated online registration for Board of Governors meeting. nars and OBA/YLD Seniors new members that allows He presented one of the CLE Committee planning telecon- new member enrollment to seminars at the conference. ference. He also chaired the take place at the division He announced that he has June YLD Board of Directors booth at the orientations. She been appointed to the ABA meeting and conducted an is currently working on a Tech Show 2008 Track Advi- e-mail vote regarding the public service announcement sory Board for the solo and amendment of Art. 3.3 in the campaign to remind law stu- small firm track. Governor YLD Bylaws and the filling dents that their “Facebook,” Hogan reported he attended of two board vacancies (Dis- “YouTube,” “Friendster”and a Pittsburg County Bar trict 8 and at-large seats). “MySpace”pages are all eas- Association meeting. Gover- ily accessible by potential REPORT OF THE nor Kennemer reported he employers and potential cli- SUPREME COURT attended the Solo and Small ents. The PSA is designed to LIAISON Firm Conference, June Board warn students to be cautious of Governors meeting, Semi- Justice Taylor reported of the pictures and language nole/Hughes counties bar work at the Supreme Court they and their friends post luncheon with CLE program continues. He said Justice on their online Web pages. by Asst. U.S. Attorney Joe Lavender will be honored in REPORT OF THE Wilson of the Northern a retirement ceremony in the GENERAL COUNSEL District and monthly task Supreme Court Courtroom force meeting to create a at 2 p.m. on July 24 with General Counsel Murdock Uniform Residential Sales a reception following. He shared a status report of the Contract--OKC/OREC. said the Judicial Nominat- Professional Responsibil- Governor Reheard reported ing Commission’s work has ity Commission and OBA she attended the Solo and begun to fill the position. He disciplinary matters. He Small Firm Conference and said Justice Lavender will be reported he participated in a June board meeting. Gov- missed. He has been a great CLE for Lawyers for Work- ernor Souter reported he contributor to the court. ing Oklahomans, spoke to attended the Solo and Small the OU law school class of LAW STUDENT DIVISION Firm Conference and June Kent Meyers, participated in LIAISON board meeting. At the confer- a program for Chinese stu- ence he took part in the golf LSD Chair Pappy reported dents at the OCU law school tournament that involved she attended the Solo and explaining attorney regula- both board members and Small Firm Conference and tion in Oklahoma and assist- conference participants. Gov- June board meeting. She ed in moving OBA items to ernor Stockwell reported she worked with Jennifer Beale storage and moving staff to attended the Solo and Small with Beale Professional Ser- modular offices. He attended Firm Conference, June board vices to offer health and life two OBA director meetings, meeting, Cleveland County insurance plans to law stu- monthly OBA staff celebra- Bar Association executive dents and recent graduates, tion and reception for PACE committee meeting and met with a representative program participants. CCBA Bench and Bar Com- from Yukon National Bank mittee meeting. BAR CENTER to prepare a debt manage- RENOVATIONS REPORT OF THE YOUNG ment seminar, brochure and LAWYERS DIVISION video for law students, coor- Executive Director Wil- dinated a project with the liams reported the move has Governor Camp reported Young Lawyers Division to been made to modular space. he attended the Solo and allow law student division He said about 1,000 boxes Small Firm Conference and members to assist on the lat- and several hundred feet of June Board of Governors est update of the elder care shelving had been moved meeting. He participated in law handbook. She prepared with employees assisting. He the YLD bus trip, Wills for a slideshow/video about the said the IS Department used Heroes publicity planning division as a marketing tool almost 5,000 feet of cable to conference, meeting with the for the upcoming orientation hook up the phone and com- ABA/YLD district represen- days at OU, TU and OCU. puter system. Servers were tative, meeting with Loyed She reported Information moved on a weekend so they Gill regarding the New Services Director Loomis cre- were not down during busi-

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1985 ness hours. President-Elect controls and will schedule Donna Dirickson, Weather- Conger reviewed the sample more frequent meetings with ford; Christopher L. Camp, board of materials recom- bar management. The board Tulsa; and Kimberly Warren, mended for interior building voted to accept the report. Tecumseh. President-Elect renovation. He explained the Governor Farris reported Conger will serve as Budget Bar Center Facilities Com- the committee recommends Committee chairperson. mittee is recommending a changing audit partners traditional design. The cur- and staying with the STATE BAR OF TEXAS rent board room tables will same firm. The board MEETING REPORT be donated to Oklahoma approved the committee’s Governor Caudle shared Legal Aid Services offices. recommendation. highlights of the events at The foundation consulted the meeting in San Antonio. a used furniture seller, who REQUEST FOR AN did not have any interest in ADDITIONAL DELEGATE SOLO AND SMALL FIRM purchasing the old furniture. TO THE ABA HOUSE OF CONFERENCE DELEGATES The board authorized staff to President Beam shared dispose of used OBA furni- Executive Director Wil- highlights of the successful ture. Executive Director Wil- liams reported under the conference at Tanglewood liams reported the renova- ABA structure that Oklaho- Resort that broke previous tion contract is not finalized, ma qualifies for another seat attendance records. and it would be his intent to in the House of Delegates. provide a bonus provision to A method to select the rep- OBA LEADERSHIP encourage prompt resentative to fill a two-year CONFERENCE completion. term and funding would be President Beam encour- OUT-OF-STATE STAFF needed. It was noted that aged all board members TRAVEL executing the documents to attend the conference requesting the additional August 23 & 24, 2007, at the Executive Director Wil- delegate does not require the Sheraton Hotel in Oklahoma liams reviewed policy on OBA to fill the position. City. Fifty-five lawyers were travel and said General February 2008 would be selected to attend the confer- Counsel Murdock is inter- the first meeting Oklahoma ence designed to develop ested in traveling to a law- would be able to send future bar leaders. yer assistance conference in another delegate. The board Halifax that may offer infor- authorized documents to be EXECUTIVE SESSION mation that would benefit filled requesting the The board went into the Lawyers Helping Law- additional delegate. executive session to discuss yers Committee. The board EXPENDITURES FOR VICE the executive director’s approved funding to allow evaluation. General Council Murdock PRESIDENT TRAVEL to attend the Halifax confer- The board authorized NEXT MEETING ence and to attend his usual expenditures for Vice Presi- The board will meet in National Organization of dent Dawson and his spouse Oklahoma City on Friday, Bar Counsel meeting in San to travel to the ABA Annual August 24, 2007, at the Francisco if he chooses to go Meeting in San Francisco in Sheraton Hotel in Oklahoma to both. The board approved August 2007. The expense City at 12:30 p.m. following funding to send LHL Com- will be within the vice the Leadership Conference mittee Chair Tom Riesen to president’s budget. luncheon. the Halifax conference. BUDGET COMMITTEE Summaries of the May and REVIEW OF THE 2006 APPOINTMENTS June board meetings can be AUDIT The board appointed as found at www.okbar.org/obj/ As Audit Committee Budget Committee members boardactions Chairperson, Governor Luke Gaither, Henryetta; Farris reviewed highlights Brett Willis, Oklahoma City; of the audit that found Deborah Reheard, Eufaula; no problems. He said the Jon K. Parsley, Guymon; Pat- committee is charged with rick O’Conner, Tulsa; Brian reviewing internal financial T. Hermanson, Ponca City;

1986 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 BAR FOUNDATION NEWS

Message from the OBF Fellows Chairperson By Roger R. Scott

Dear Friends, It has been my privilege to serve as chairperson of the Oklahoma Bar Foundation Fellows program for the past two years. Your foundation has enjoyed unprecedented growth in recent years. OBF is continually improv- ing our grant process, and we are proud of our progress. New organiza- tions were funded last year, and more initiatives will be funded this year through the availability of added grant funding. Your OBF Grants and Awards Committee is hard at work evaluating and interviewing prospec- tive candidates for the 2007 grant year. We need your help! I ask port that helps make legal increase by 37 percent and that you join the OBF Fellows assistance in civil proceed- will likely double by 2030. program today and invite oth- ings possible for the most OBF funded new programs ers to become Fellows. Fel- vulnerable citizens of our during 2006 that will pro- low membership is an easy state, poorer Oklahomans vide added services beyond and painless opportunity to and the elderly. Support for what legal aid providers become even more involved in Legal Aid Services of Okla- are able to serve. Last year helping to make a difference homa (LASO) and Okla- OBF awarded $38,000 to in the lives of others while homa Indian Legal Services help promote new initia- enhancing the image of our (OILS) is one of the essen- tives, Senior Law Resource legal profession. I can’t think tial aspects of our mission. Center and the Oklahoma of a good reason for not being Last year $280,000 was Court Appointed Advocates an OBF Fellow! given not only for legal rep- for Vulnerable Adults resentation and advice, but program. Becoming a Fellow is a sim- for educational programs ple request that every attorney • Children’s Legal Service that will help citizens find should do. Please don’t delay Programs – OBF funded solutions and aid in the pre- joining the Fellows any longer newer programs that pro- vention of future problems. and join today. Legal needs vide special children’s More than $3.7 million has in Oklahoma are greater than advocacy and pro bono been given over the past ever, and you can help with legal services, in addition 20 years to support these the work of your founda- to the many children being programs. tion. When you join the Fel- served through legal aid lows program you don’t just • Senior Services – The providers. During 2006 belong to the foundation – it 2000 U.S. Census reported $38,000 was awarded to belongs to you! 429,566 Oklahomans were Oklahoma Court Appoint- 65 years of age and older. ed Special Advocates, Tulsa • Legal Services – OBF By 2015, the over age 65 Lawyers for Children and awards financial sup- population is predicted to the Mayes County Youth

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1987 Court programs. More grants have also enabled vehicle where members than $160,000 has been hundreds of Oklahoma of the Oklahoma bar, given over the years to lawyers to find new ways other foundation partners provide specialized vol- to get involved in the and concerned Oklahoma unteer training and to community, balance their citizens can make a dif- expand attorney pro bono professional responsibili- ference through philan- services. ties with the rest of their thropy. FELLOWELLOW ENROLLMENTNROLLMENT FORMORM life and help all those F E F • Domestic Violence and Fellows are the back- involved in the Oklaho- Victim Programs – The bone of the Oklahoma Bar � Attorney � Non-Attorney ma legal system to bring Domestic Violence Divi- Foundation and are very their highest ideals to the sion of Oklahoma Indian important to the work of the Name: ______practice of law. Scores of Legal Services and SANE foundation. Fellows repre- law students have been (name, as it should appear on your OBF Fellow Plaque) County of Southwest Oklahoma sent a distinguished group helped through scholar- received funding to of attorneys who embody ship programs and the assist in special legal the highest traditions and foundation is pleased to Firm or other affiliation: ______service areas. More than ideals of our legal profes- announce the new Okla- $150,000 has been award- sion. Without the ongoing homa Bar Foundation ed by the foundation for leadership and financial Fellows’ Law Student victims’ education and contributions from Fellows, Mailing & Delivery Address:______Scholarship Program assistance programs since many public service efforts this year. During 2006 1986. might not be possible. Every $97,000 was awarded for attorney should be a Fellow. City/State/Zip: ______Trustees look forward to working with you and those Phone:______Fax:______E-Mail Address:______you refer for Fellowship. We know you take pride in the __ I want to be an OBF Fellow now – Bill Me Later! work that is being done on behalf of Oklahoma attor- __ Total amount enclosed, $1,000 neys for the betterment of our great state and our pro- __ $100 enclosed & bill annually fession and want to become __ New Lawyer 1st Year, $25 enclosed & bill as stated YES – a supporting member of the I support charitable good works OBF team! __ New Lawyer within 3 Years, $50 enclosed & bill as stated & agree to become a member of More can be accomplished each year Sincerely, the OBF Fellow Program. __ I want to be recognized as a Sustaining Fellow & with your help as a Fellow! will continue my annual gift of at least $100 – (initial pledge should be complete) • Legal Education – OBF education and more than has supported law-relat- $1.8 million has been Roger R. Scott __ I want to be recognized at the leadership level of Benefactor Fellow & will annually ed education programs awarded for legal educa- Chair, OBF Fellows contribute at least $300 – (initial pledge should be complete) for thousands of Okla- tion since 1986. Program homa school children Signature & Date: ______OBA Bar #: ______• Philanthropic Voice and the general public – Your bar founda- for many years. These Make checks payable to: tion has become a clear Oklahoma Bar Foundation • P O Box 53036 • Oklahoma City OK 73152-3036 • (405) 416-7070 OBF SPONSOR:______Every attorney should be a Fellow. I/we wish to arrange a time to discuss possible cy pres distribution to the Oklahoma Bar Foundation and my contact information is listed above. “ ” Many thanks for your support & generosity!

1988 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 FFELLOWELLOW EENROLLMENTNROLLMENT FFORMORM � Attorney � Non-Attorney

Name: ______(name, as it should appear on your OBF Fellow Plaque) County

Firm or other affiliation: ______

Mailing & Delivery Address:______

City/State/Zip: ______

Phone:______Fax:______E-Mail Address:______

__ I want to be an OBF Fellow now – Bill Me Later!

__ Total amount enclosed, $1,000

__ $100 enclosed & bill annually __ New Lawyer 1st Year, $25 enclosed & bill as stated YES – I support charitable good works __ New Lawyer within 3 Years, $50 enclosed & bill as stated & agree to become a member of the OBF Fellow Program. __ I want to be recognized as a Sustaining Fellow & will continue my annual gift of at least $100 – (initial pledge should be complete)

__ I want to be recognized at the leadership level of Benefactor Fellow & will annually contribute at least $300 – (initial pledge should be complete)

Signature & Date: ______OBA Bar #: ______

Make checks payable to: Oklahoma Bar Foundation • P O Box 53036 • Oklahoma City OK 73152-3036 • (405) 416-7070 OBF SPONSOR:______I/we wish to arrange a time to discuss possible cy pres distribution to the Oklahoma Bar Foundation and my contact information is listed above. Many thanks for your support & generosity!

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1989 ACCESS TO JUSTICE

Disabled Children Need Volunteer Representation By Laura Ort-Presley

Supplemental Security dren receiving SSI payments Income, (hereinafter referred are covered by some form of to as SSI), is an effective part health insurance. Medicaid of the Federal safety net in is the most common source, reducing poverty among dis- but substantial variation was abled children. The National reported in utilization. The Survey of SSI Children and findings show however, that Families was conducted to SSI payments are not used to assess the role of the SSI pro- cover medical expenses for the gram in providing assistance majority of children.3 to low-income children with The president signed into disabilities and their families.1 law P.L. 104-193, the Per- Survey results showed that sonal Responsibility and most children receiving SSI Work Opportunity Reconcili- lived in a family headed by a ation Act, which substantially single mother, and less than changed the definition of dis- one in three lived with both ability for children under the parents. Approximately half SSI program.4 Approximately lived in a household with at 264,000 notices of redetermi- least one other disabled indi- ity of impairments of children nation were sent, and 60,000 vidual. Approximately 70 per- receiving SSI. The survey age 18 redetermination notices cent were enrolled in special indicates that there are wide were sent out in November education. SSI support was variations in severity, reflected and December 1996. It was found to be the most impor- in reports of the presence estimated that 135,000 children tant source of family income, or absence of six functional would lose their SSI payments with earnings a close second limitations, perceived overall under the new definition, and at approximately 40 percent health status and perceived due to age 18 redetermina- of the family’s income. The impact of disability. The sur- tions. The administration’s survey found that 54 percent vey revealed that physical dis- records show that by July 1999 of those children who received abilities were most common nearly 104,000 children had SSI payments lived in families among children ages 0 to 5, been found no longer eligible above the poverty threshold, and mental impairments were for SSI. The total estimated when all annual income was most common among children savings from the new SSI pro- considered. This is notable ages 6 to 17. About 36 percent visions were estimated at more since the federal SSI program of children reportedly had than $8 billion through the guarantees an income level disabilities that affected their year 2002.5 below the poverty line.2 abilities to do things “a great The Congressional Budget The survey supplemented deal,” and 21 percent had dis- Office (CBO) estimated that the Social Security Adminis- abilities that affected their abil- 22 percent of eligible dis- tration’s records regarding the ities to do things “very little” abled children under the old disability diagnoses and sever- or with “no impact.” All chil-

1990 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 law would become ineli- important part of the fed- the state’s legal aid offices gible under the new statute, eral safety net for children. and the local Social Security between 1996 to 2002. The As part of a growing trend offices in their area as some extent of the financial impact in decreased allocation of will maintain lists of volun- on the states and the families increasing federal budgets teer representatives. of these lesser disabled chil- due to increased gross This article was written dren has not been tracked. It domestic product, SSI for by Laura Ort-Presley in her is clear that the impact will children was reformed due private capacity. No official fall to the individual states to shifting political policy support or endorsement by the and the families of these which deemed that lesser Social Security Administration children to provide for the disabled children would no or the United States is intended care of these lesser disabled longer receive this form of or should be inferred. children. It is estimated that, income, shifting the costs as a piece of the federal associated with these chil- 1. A profile of Children with Disabilities domestic budget excluding dren to their families, local Receiving SSI: Highlights from the National Survey of SSI Children and Families, by Kal- defense and international communities and the states. man Rupp, Paul S. Davies, Chad Newcomb, affairs, spending on children Many children remain eli- Howard Iams, Carrie Becker, Shanti Mulp- will decline under current gible for SSI. Many of these uru, Stephen Ressler, Kathleen Romig, and Baylor Miller; Social Security Bulletin, Vol. law from 15.4 percent in children who would other- 66, No. 2, 2005/2006. 2006 to 13.1 percent in 2017. wise be found disabled upon 2. Id. The survey breaks down the assets of the families of children receiving SSI: Interestingly, spending on appeal, go unrepresented in some children lived in households well children declined from 20.1 their claims for benefits and below the poverty threshold and other lived in households well over 200 percent of percent in 1960 to 15.4 per- must rely on the representa- the poverty threshold; one-third lived in cent in 2006, although the tion of their parent or guard- families owning a home; two-thirds lived aggregate amount grew from ian if their claim is appealed in families owning at least one car; about 40 percent lived in families with no liquid $53 billion in 1960 to $333 before an administrative law assets; and less than 4 percent lived with billion in 2006 at the value judge. adults who owned stocks, mutual funds, 6 CDs or savings bonds. of the dollar today. Children 3. Id. The use of supportive therapies benefited from 20.1 percent also varied widely, with physical, occupa- tional and speech therapy the most com- of federal domestic spend- monly used therapies. In this dominant ing in 1960, 14.7 percent of …I encourage service category, only 11 percent reported having unmet service needs, while more the increase in spending than one-third had unmet needs for mental between 1960 and 2006, and members of the health counseling and three-quarters had will receive only 5.6 percent unmet needs for respite care. 4. The Effect of Welfare Reform on SSA’s of the increase in spend- OBA to volunteer Disability Programs: Design of Policy Evalu- ing on the domestic budget ation and Early Evidence, by Paul Davies, 7 Howard Iams and Kalman Rupp, Social between 2006 and 2017. “to represent these Security Bulletin, Vol. 63, No. 1, 2000. Under the act, the individualized functional “Kids’ Share 2007: How assessment and all reference to maladap- Children Fare in the Federal children… tive behavior in the Listing of Impairments, was eliminated. A new disability definition Budget” tracks federal spend- for children was added, defining disabil- ing from 1960 to 2006 and uti- ity as “a medically determinable physical or mental impairment or combination of lized current policy and some impairments that causes marked and severe assumptions to project activ- As members of the profes- functional limitations.” Additionally, indi- viduals eligible for SSI as children are to be ity through 2017, by taking a sion whose oath of office it reassessed for eligibility against the adult look at more than 100 major is to uphold the laws of our disability criteria upon reaching age 18. programs aimed at improv- state and the federal govern- 5. Supplemental Security Income for Chil- dren with Disabilities, Part of the Federal Safety ing children’s lives through ment, I encourage members” Net, by Pamela J. Loprest, No. A-10 in Series, income security, health care, of the Oklahoma Bar Asso- “Issues and Options for States,” July 1, 1997, Urban Institute Publications: www.urban. social services, food and ciation to volunteer to rep- org/url.cfm?ID=307041 nutritional aid, housing, edu- resent these children in their 6. Federal Resources for Children Challenged by Automatic Growth in Adult Entitlement cation, training, and tax cred- claims for SSI payments. Programs, by The Urban Institute, March 15, its and exemptions for their Members of the bar who 2007; www.urban.org/url.cfm?ID=901056 families.8 wish to fill this need may 7. Id. 8. Id. do so by contacting their Supplemental Secu- local bar association officers, rity Income has become an

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1991 YOUNG LAWYERS DIVISION

YLD HOSTS RECEPTIONS in the private loft of Kampai homa and Arkansas. As the HONORING NEW BAR Lounge, located in Tulsa’s district representative, Ms. ADMITTEES Brookside district. Over Gruntmeir will represent drinks and hors d’oeuvres, In late April 93 new attor- both states before the ABA/ Chair Chris Camp and YLD neys were sworn in as new YLD, which has more than Director Roy Tucker wel- lawyers at the House of 300 state and local affiliates comed the new admittees Representatives chamber at including the Young Lawyer and distributed informa- the State Capitol. Following Divisions for the Oklahoma, tion regarding the YLD’s opening remarks by Chief Tulsa County and Oklahoma 10 public service and eight Justice James R. Winchester County bar associations. member service committees. and OBA President Stephen She will attend all meetings The event was well-attended Beam, OBA/YLD Chairman of the ABA/YLD Council, by attorneys, both new and Christopher Camp briefly the general executive and not-so-new, including U.S. spoke, urging honorees to administrative authority District Court Judge Ronald become active in the YLD over the division. A. White, Sean Hanlon (law and other OBA committees clerk for U.S. Magistrate The YLD also applauds and sections. Judge Sam A. Joyner), Peni- Director Roy Tucker for He told the new members, na Chiu (Fred Dorwart Law- being appointed Vice Chair “Your bar involvement will yers and former law clerk for of the ABA/YLD General prove every bit as beneficial Judge Edward C. Prado of Practice, Solo and Small to your professional devel- the U.S. Court of Appeals for Firm Committee for 2007- opment as anything else in the Fifth Circuit), Leah Car- 2008. This committee pro- your career. It will allow penter (Gable & Gotwals), vides an avenue for young you to cultivate one-on-one Eric Schelin (Dorwart) and lawyers to gather and share personal relationships with new admittees Geoffrey Bee- ideas about how to mar- judges, bar leaders and fel- son, Jessica Carriger, Simon ket, manage and master a low attorneys. It will rein- Harwood, and Tracy Smith. general or solo practice by force that you can be adver- Thanks to everyone who offering opportunities to sarial without being enemies turned out to honor our new organize and speak at semi- and train you to practice admittees. Special thanks nars and author articles and with civility.” go to Sarah Barry (Gable) publications. In his role as and Jasen Corns (Jenks Law) vice chair, Mr. Tucker will be Immediately after the for coordinating the event, responsible for assisting the swearing-in ceremony, the as well as to John Weaver chair in operating and man- YLD held a reception in the (Oklahoma Tax Commis- aging the 169-member com- Capitol rotunda for the new sion), who organized and mittee, as well as helping admittees and their family hosted the Oklahoma City to draft and implement the and friends in attendance. reception at Bricktown Brew- committee’s plan of action. YLD Director Amber Peckio ery on May 17. He assumed his duties after Garrett and former OBA participating in an orienta- Law Student Division Chair YLD DIRECTORS tion in May. LeAnne McGill were pres- APPOINTED TO ABA ent to greet the newest OBA LEADERSHIP POSITIONS YLD DIRECTOR FOSTERS members, answer questions DEMOCRACY IN The YLD extends its and promote involvement in FORMER COMMUNIST congratulations to Direc- the bar. BLOC tor Doris Gruntmeir on her The following Thursday, appointment as American YLD Director Randy the YLD hosted a less formal Bar Association YLD District Grau traveled to the Czech reception and happy hour Representative for Okla- Republic to represent Okla-

1992 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 YLD SEEKS VOLUNTEER ATTORNEYS TO ASSIST WITH DISASTER LEGAL SERVICES Due to recent flooding, FEMA has made a federal disaster declaration for five Oklahoma counties. FEMA has set up Disaster Recov- ery Centers (DRC) in Miami (Ottawa County), Bartlesville (Washington County), South Coffeyville (Nowata County) and Shawnee (Pottawatomie County). Plans are to set up a DRC in Comanche County, and others may follow. The centers are staffed Monday through Saturday from 8 a.m. to 6 p.m. and provide individuals assistance relat- ing to a number of issues.

At the Tulsa reception for new lawyers are (from left) Roy Tucker, Tracy Smith, Many of the individuals Simon Harwood, Jessica Carriger, Sean Hanlon, Penina Chiu, Sarah Barry, affected by the recent flood- Chris Camp and D.J. Slaughter. ing are in need of legal ser- vices. The YLD has a long- standing agreement with homa as part of Civitas, an Committee. He was a former FEMA to provide volunteer international program teach- candidate for the Oklahoma legal services in the event of ing individuals how to be House of Representatives a disaster. The most antici- involved in their local gov- before joining the adminis- pated needs at this time are ernment. tration of Commissioner Ray related to insurance claims, Vaughn in March 2007. counseling, landlord/tenant “It was an honor to rep- issues, environmental issues resent my country and my The conference took place and other legal issues arising state,” Mr. Grau said. “See- in the Czech capitol of from the conditions related ing the Czech Republic Prague. Mr. Grau participat- to the recent flooding. struggle with the growing ed in round table discussions pains of democracy made with Czech senators, politi- If you are able to volun- me appreciate my homeland cal scientists and legal pro- teer your services, please even more.” fessionals regarding democ- send your name and contact racy and the rule of law. He information to Dana Shel- Grau, who serves as a also met with Ambassador burne at [email protected] or deputy Oklahoma County Richard W. Graber at the (405) 416-7007 in the OBA’s commissioner, served as part U.S. Embassy. Office of General Counsel. of a delegation along with The OBA will maintain a three other lawyers from list of volunteers and will Michigan and Colorado. The Disaster Assistance refer individuals to volun- OBA Law-related Educa- teer attorneys as calls are tion Department selected received. Volunteer attorneys him to represent Oklahoma who are faced with difficult because of his involvement legal issues are encouraged in government and law- to contact FEMA attorney related activities. He is the Patricia Trask, who is willing YLD’s representative to the Needed to help on difficult issues. OBA Law-related Education

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1993 She may be reached at (405) As it stood, Article 3.3 be elected for a two (2) year 869-3983. only addressed the elections term by the membership of 16 of the 20 voting seats. of the Division pursuant to YLD BOARD AMENDS It did not address when the election procedures set BYLAWS elections for the extra seat forth in these Bylaws. In Article 3.1 of the YLD from Districts 3 and 6 or even numbered years, one bylaws provides that the the two additional at-large (1) Director shall be elected board is composed of the seats were to be held (nor from Judicial District Nos. 1, chairperson, chairperson- did it address the at-large 3, 5, 7 and 9, two (2) Direc- elect, past-chairperson, 20 rural). It appears the intent tors shall be elected from voting members and ex-offi- was to have the extra seat District 6, and three (3) cio members. The 20 voting from District 3 and the two additional Directors shall members are one from each additional at-large seats be elected at-large (one of nine judicial districts, plus elected in odd years, with which is an at-large Rural two for Districts 3 and 6 the extra seat from District seat). In odd numbered each and seven at-large (two 6 to be elected in even years years, one (1) Director shall of which are non-District 3 (based on recent practice be elected from Judicial Dis- and 6, i.e. rural). and handbook provisions). trict Nos. 2, 4, 6 and 8, two This would result in an even (2) Directors shall be elected Article 3.3 provided that number of voting seats being from District 3, and four (4) all (non-chair track) direc- elected in both even and odd additional Directors shall tors are elected for two-year years (10 and 10). be elected at-large (one of terms as follows: which is an at-large Rural Accordingly, the YLD seat). Any vacancy on the Even years – Districts 1, 3, board of directors voted Your one-click Board of Directors shall be 5, 6, 7, and 9 and 3 at-large to amend Article 3.3 of the filled by interim appoint- resource to all bylaws to read: Odd years – Districts 2, 3, ment by a majority vote of 4, 6, 8 andthe 2 at-large information 3.3 Election and Terms of the Board of Directors for the you need. Directors. Directors shall balance of the term vacated.

1994Vol. 77 — No. 26 — 9/30/2006 TheThe OklahomaOklahoma BarBar Journal Vol. 78 — No. 21 — 8/4/20071 Calendar September

3 Labor Day (State Holiday) 7 OBA Awards Committee Meeting; 11 a.m.; Supreme Court Courtroom, State August Capitol; Contact: Gary Clark (405) 385-5146 Oklahoma Trial Judges 8 State Legal Referral Ser- 22 OBA Diversity Committee Association Meeting; 12 p.m.; vice Task Force Meeting; Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma 1 p.m.; Oklahoma Bar Center, Oklahoma Bar Center, City; Contact: Judge Barbara Oklahoma City and Tulsa Oklahoma City and Tulsa Swinton (405) 713-7109 County Bar Center, Tulsa; County Bar Center, Tulsa; Contact: Dietmar Caudle (580) Contact: Linda Samuel- 11 OBA Bar Center Facilities 248-0202 Jaha (405) 290-7030 Committee Meeting; 9 a.m.; Oklahoma Bar Center, Okla- 10 OBA Family Law Section 23 OBA Legal Intern homa City; Contact: Bill Conger Meeting; 3 p.m.; Oklahoma Committee Meeting; 3 (405) 521-5845 Bar Center, Oklahoma City and p.m.; Oklahoma Bar Center, OSU Tulsa; Contact: Donelle Oklahoma City; Contact: OBA Member Services Ratheal (405) 842-6342 H. Terrell Monks Committee Meeting; 3 p.m.; (405) 733-8686 Oklahoma Bar Center, 15 OBA Women in Law Com- Oklahoma City; Contact: Debra mittee Meeting; 23-24 OBA Leadership Charles (405) 286-6836 12 p.m.; Oklahoma Bar Center, Conference; Sheraton Hotel, Oklahoma City and Tulsa One North Broadway, 12 State Legal Referral Service County Bar Center, Tulsa; Oklahoma City; Contact: Linda Task Force Meeting; 1 p.m.; Contact: Elizabeth Joyner Thomas (918) 337-0947 Oklahoma Bar Center, (918) 573-1143 Oklahoma City; Contact: 24 OBA Board of Governors Dietmar Caudle (580) 248-0202 16 OBA Bench and Bar Com- Meeting; Sheraton Hotel, OBA Professionalism mittee Meeting; One North Broadway, Committee Meeting; 4 p.m.; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Oklahoma Bar Center, Oklahoma City and Tulsa John Morris Williams Oklahoma City; Contact: Steven County Bar Center, Tulsa; (405) 416-7000 Dobbs (405) 235-7600 Contact: Jack Brown (918) 581-8211 cont’d on next page OBA Work/Life Balance Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Melanie Jester (405) 609- 5280 OBA Government and Administrative Law Sec- tion Meeting; 1:30 p.m.; Oklahoma Bar Center, Okla- homa City; Contact: Kevin Nelson (405) 620-0547

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1995 sept. cont’d. 14 OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center, Okla- homa City and OSU Tulsa; Contact: Donelle Ratheal (405) 842-6342 17 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Larry Yadon (918) 595-6607 or Barry Davis (405) 607-8757 19 OBA Clients’ Security Fund Committee Meeting; 2 p.m.; Okla- homa Bar Center, Oklahoma City; October Contact: Micheal Salem Oklahoma Trial Judges Association Meeting; (405) 366-1234 5 12 p.m.; Oklahoma Bar Center, Oklahoma City; Ginsburg Inn of Court; 5 p.m.; Okla- Contact: Judge Barbara Swinton (405) 713-7109 homa Bar Center, Oklahoma City; Contact: Julie Bates (405) 691-5080 9 OBA Bar Center Facilities Committee Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Con- 20 OBF Trustees Meeting; 12 p.m.; tact: Bill Conger (405) 521-5845 Oklahoma History Center, Oklahoma City; Contact: Nancy Norsworthy 10 State Legal Referral Service Task Force (405) 416-7070 Meeting; 1 p.m.; Oklahoma Bar Center, OBA Work/Life Balance Committee Oklahoma City; Contact: Dietmar Caudle Meeting; 12 p.m.; Oklahoma Bar (580) 248-0202 Center, Oklahoma City; Contact: OBA Professionalism Committee Meeting; 4 p.m.; Melanie Jester (405) 609-5280 Oklahoma Bar Center, Oklahoma City; Contact: Steven Dobbs (405) 235-7600 21 OBA Board of Governors Meeting; Eufaula; Contact: John Morris 12 OBA Family Law Section Meeting; 3 p.m.; Okla- Williams (405) 416-7000 homa Bar Center, Oklahoma City and OSU Tulsa; Contact: Donelle Ratheal (405) 842-6342 26 OBA Diversity Committee Meeting; 3 p.m.; Oklahoma Bar Center, 17 OBA Diversity Committee Meeting; 3 p.m.; Okla- Oklahoma City; Contact: Linda Samu- homa Bar Center, Oklahoma City; Contact: Linda el-Jaha (405) 290-7030 Samuel-Jaha (405) 290-7030 Ginsburg Inn of Court; 5 p.m.; Oklahoma Bar 2007 OBA Women in Law Confer- 27 Center, Oklahoma City; Contact: Julie Bates (405) ence; Skirvin Hotel, Oklahoma City; 691-5080 Contact: (405) 416-7006 New Attorney Admission Ceremony; 18 OBA Work/Life Balance Committee Meeting; OCU – 12 p.m.; Oklahoma Bar Center, Oklahoma City; 9 a.m.; OU – 10 a.m.; TU – 11 a.m.; Contact: Melanie Jester (405) 609-5280 House of Representatives, State Capi- tol; Contact: Board of Bar Examiners 19 OBA Board of Governors Meeting; Custer County; (405) 416-7075 Contact: John Morris Williams (405) 416-7000 23 Death Oral Argument, Wade Greely Lay – D- 2005-1081; 10 a.m.; Court of Criminal Appeals Courtroom

This master calendar of events has been prepared by the Offi ce of the Chief Justice in cooperation with the Oklahoma Bar Association to advise the judiciary and the bar of events of special importance. The calendar is readily accessible at www.oscn.net or www.okbar.org.

1996 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 FOR YOUR INFORMATION

Justice Lavender Retires After 42 years on the Oklahoma Supreme Court, Justice Robert Lavender has stepped down from his position on the bench. His retirement took effect Aug. 1. Justice Lavender, who recently turned 81 years old, was appointed by former Gov. Henry Bellmon. He served as chief justice from 1979 to 1980. He was in private practice in Tulsa and Claremore before being appointed as a justice. He also was city attorney of Tulsa and Catoosa. He is a graduate of the University of Tulsa law school and a veteran of World War II. The Judicial Nominating Commission is seeking applicants to fill the District One vacancy.

President Beam Recognized Bar Association Honored with Mental Health Award Melissa DeLacerda admires OBA President Stephen Beam’s award OBA President Stephen Beam and OBA Execu- plaque, which was presented to tive Director John Morris Williams recently him by the American Bar Associ- accepted the 2007 Mental Health Innovation ation’s General Practice, Solo and Award from the Mental Health Association of Small Firm Division at its spring Central Oklahoma at a luncheon in Oklahoma meeting in Washington, D.C. Beam City. Shirley Cox, legal services developer at was given the award for one of his the Oklahoma Department of Human Services, bar journal president’s messages, presented the award. The award recognized the in which he explained why he is a OBA’s program created to address an increas- lifetime ABA member. ing number of lawyer suicides. The program provides all bar members up to six hours of free crisis counseling and is available 24 hours a day.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1997 Beale Professional Services Relocates Beale Professional Services, an OBA Robert Betts partner in long-term insurance programs, has relocated to 4111 N. Lincoln Blvd. in Oklahoma City. The company has added staff over the Teresa Rendon years and outgrew its location near I-44 and Pennsylvania Avenue. Diversity Committee The new Lincoln Boulevard loca- Presents Bar Bri Scholarships tion offers more office and meeting The OBA Diversity Committee space, more parking for staff and recently awarded three law school Jamar Osborne clients and is centrally located near graduates scholarships to cover the cost of attending I-44 and I-235. a seven-week long bar exam review course. Pictured Since 1955 Beale has offered insur- are (from left) OBA Diversity Committee Chair ance programs through its partner- Linda Samuel-Jaha, OCU graduate Cree Hammond ship with the OBA. For more infor- and OBA Diversity Committee member Teresa mation, call (405) 521-1600, (800) Rendon. Other recipients are OU graduate Jamar 530-4863 or visit www.bealepro.com. Osborne and TU graduate Robert Betts.

Portrait of Legal Pioneer Revealed at Capitol A portrait of Ada Lois Sipuel Fisher, the first African American to enter and graduate from the OU College of Law, was unveiled at the State Capitol on June 19, often referred to as “Juneteenth.” The portrait, created by Norman artist Mitsuno Reedy, portrays the first African American woman attorney in Oklahoma. Ms. Fisher’s son, Bruce Fisher of Okla- homa City, spoke during the presentation. He said his mother’s three-year struggle challenging segregation changed the path of history in Oklahoma and the United States. “Her landmark case led the way for a ruling by the United States Supreme Court that opened the door for higher education opportunities to African American students in Okla- homa,” Mr. Fisher said.

1998 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Midwest City Lawyer Chosen for ABA Committee Joe Crosthwait, a solo practi- tioner from Midwest City, has been appointed to a one-year term on the American Bar Association Standing Com- mittee on Law and National Security Advisory Committee. Mr. Crosthwait’s term will begin at the end of the OBA President Stephen Beam visits with Edmond teachers Beth Evans and Julia Cook ABA’s Annual Meeting this month. at the PACE Institute. Ms. Evans is also an The committee conducts studies, sponsors programs OBA member. and conferences, and administers working groups PACE Institute Attracts on law and national security-related issues. The Teachers from across committee’s activities assist policymakers, educate Oklahoma lawyers, the media and the public, and enable the committee to make recommendations to the ABA. Oklahoma educators attended the 18th annual PACE Institute, Mr. Crosthwait served as OBA president in 2000, funded by a grant from the Okla- was on the Executive Council of National Confer- homa Bar Foundation and admin- ence of Bar Presidents and has been a member of istered by the OBA’s Law-related several ABA committees, including its House of Education program. The institute Delegates. was held July 8-12 in Midwest City. This year’s theme was “Oklahoma Centennial: A State of Many Nations.” During the week, participants examined the various aspects of the Oklahoma judicial system, Native American courts, citizenship education and public policy. Larry Gerston, pro- fessor of political science at San Jose State University, served as keynote speaker for the institute’s opening reception. He encour- aged the teachers to be proud of the impact they have on their stu- dents. Participants also met with OBA President Stephen Beam.

Oklahoma City Attorney Receives Law Day Award Bill Burkett (third from left) received the Journal Record Law Day Award at the Oklahoma County Law Day Luncheon in May. He is pictured with his daughter, U.S. Magistrate Judge Bana Roberts (left), David High and Julie Bates.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 1999 OBA Member Reinstatements The following members of the OBA sus- The following members of the OBA suspend- pended for noncompliance with the Rules ed for nonpayment of dues have complied for Mandatory Continuing Legal Education with the requirements for reinstatement, and have complied with the requirements for rein- notice is hereby given of such reinstatement: statement, and notice is hereby given of such Robert Allen Benningfield reinstatement: OBA No. 716 William Lee Ford 426 S. Cherokee Ave. OBA No. 14951 P.O. Box 490 204 W. Rose Dr. Catoosa, OK 74015 Midwest City, OK 73110 William Andrew Stack Robert Joseph Hauge OBA No. 18606 OBA No. 20007 9123 Spinning Leaf Cove 309 E. Dewey Austin, TX 78735 Sapulpa, OK 74066-4031 John Edward Hembera Jr. John Edward Hembera Jr. OBA No. 17977 OBA No. 17977 P.O. Box 721291 P.O. Box 721291 Norman, OK 73070 Norman, OK 73070 Luwalhati Admana Johnson Terry A. Simonson OBA No. 20254 OBA No. 13529 P.O. Box 778 1515 E. 71st, #309 Tontitown, AR 72770 Tulsa, OK 74136 Lynne Christine Zaccaria OBA No. 18886 1600 Eagle Dr. Edmond, OK 73034

OBA Member Resignations The following OBA members Holiday have resigned as members of the association and notice is hereby given of such resignation: Hours Ian Steedman The Oklahoma Bar OBA No. 14597 Center will be closed 5213 NW 109 Street Monday, Sept. 3 Oklahoma City, OK 73162 for Labor Day. Jeffrey Alan Fleischhauer OBA No. 12058 P.O. Box 75 Roanoke, VA 24002-0075

2000 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 BENCH & BAR BRIEFS

the Air Quality Committee contrasted with insight from of the ABA Section of the more than 25 acclaimed law Environment, Energy and professors and legal scholars Resources. from around the country. ov. Brad Henry pro- ulsa attorney John D. rad Klepper has been Gclaimed July 1 as “J. TRussell and Oklahoma Belected president of Duke Logan Day” to honor City attorneys Terry W. Rebuilding Together OKC J. Duke Logan of Vinita, Tippens and Eric S. for the 2007 – 2008 term. Mr. who recently retired as coun- Eissenstat were recently Klepper has volunteered and sel after 12 years of service inducted into the Litigation provided pro bono architec- to the Council on Judicial Counsel of America at the tural and legal counsel to the Complaints. The proclama- counsel’s Spring Conference organization since 1993. The tion praised Mr. Logan’s and Induction of Fellows in organization’s mission is to “invaluable counsel and New York. The counsel is a rebuild lives and neighbor- advice for the members of trial lawyer honorary society hoods by making homes the Council, helping ensure composed of less than one- safe, secure and weather- the public respect and repu- half of 1 percent of American proof for low-income senior tation of our judiciary.” lawyers. citizens in the Oklahoma City metropolitan area. He Gov. Brad Henry has klahoma State Sen. is a licensed architect whose appointed Mike Voorhees OGlenn Coffee recently legal practice is concentrated to the Oklahoma City Com- became a commissioner for on construction law and munity College Board of the National Conference of intellectual property-related Regents for a seven-year Commissioners on Uniform matters. term. Mr. Voorhees, who State Laws. This organiza- practices in south Oklahoma tion, which first met in 1892, City, is an alumnus of the drafts and promotes the college. enactment of uniform laws designed to solve problems . Denny Moffett has been common to every state. The Jelected president of the 300 commissioners, all law- Teton County, Wyo., Bar yers, study and review state ov. Brad Henry recently Association. Mr. Moffett laws to determine which appointed two-term practices in Jackson, Wyo., as areas of law should be uni- G well as in Tulsa. Oklahoma County Com- form throughout the nation. missioner Jim Roth to the huck Hoskin Jr. of documentary film “The Oklahoma Corporation CVinita was recently A Trials of Law School,” Commission. Mr. Roth suc- elected to a six-year term directed and produced by ceeds Denise Bode. A native on the Cherokee Nation OBA member and filmmaker of Prairie Village, Kan., he Council representing Craig Porter Heath Morgan will received his B.A. degree at and Nowata Counties. Mr. premiere at the 20th Annual Kansas State University in Hoskin is resident officer Dallas Video Festival. The 1991. Three years later, he of the National Labor Rela- film will screen Saturday, earned a law degree at OCU tions Board’s Tulsa Resident Aug. 4 at noon in the Kalita School of Law. Office. Humphries Theater. The heryl Clayton of Nor- atthew Paque, an envi- film follows eight first-year Cman has joined the Mronmental attorney law students as they try to board of directors of First supervisor at the Oklahoma juggle studies, family and State Bank. Ms. Clayton has Department of Environmen- relationships. Filmed pri- practiced law in Noble since tal Quality, has been selected marily at the OU College of 1976. She has a bachelor’s to serve as a vice chair of Law, the student’s stories are

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 2001 degree in business finance law. She may be reached by onner & Winters has from Kansas State University e-mail at shelly.dalrymple@ Chired Robin F. Fields as and a Juris Doctor from the pangea3.com. a partner. Ms. Fields is a trial University of Oklahoma. She attorney who focuses her has practiced law in Noble haron C. Jett has become practice on complex litiga- since 1976 and was Cleve- Sa shareholder at Higier tion with a special emphasis land County Bar Associa- Lautin PC in Dallas. Her on energy and environmen- tion’s first woman president. primary practice is in the tal law. She may be reached areas of asset-based and at (405) 272-5711. ames Matthew Branum other collateralized lending, Jannounces the formation bank operations, real estate, obert J. Westbrook of his private practice. The mortgage lending, bank Rannounces the relocation firm works in the area of loan workouts and collec- of his office to 609 Castle G.I. rights/military law with tions, and general business Ridge Road, Austin, Texas a particular emphasis on transactions. Ms. Jett, who is 78746. Mr. Westbrook is a Army discharges and court- also a CPA, may be reached 1981 graduate of the TU martial defense. He earned at Higier Lautin PC, 15851 College of Law. His practice a bachelor’s degree from the Dallas Parkway, Suite 1001, focuses on oil and gas, and Institute of Christian Studies Addison, Texas 75001; (972) commercial litigation. Mr. in Austin, Texas in 2000 and 716-1888; fax: (972) 716-1899; Westbrook may be reached graduated from OCU School email: sjett@higierlautin. at (512) 329-5477. His mail- of Law in 2005. He is also com. ing address remains P. O. of counsel with the bank- Box 26713, Austin, TX ruptcy firm of Branum Law hilip L. Watson has 78755-0713. Offices in Newcastle. He can joined the Oklahoma P rowe & Dunlevy named be reached at 502 N.E. 16th, City firm of Hammons, recently Charles Good- Oklahoma City, 73104, (405) Gowens and Associates as C win, Courtney Warmington, 476-5620 (Oklahoma City), an associate. Mr. Watson is Kayci Hughes and Susan (580) 215-4049 (Lawton/Ft. a 1994 graduate of the OCU Huntsman directors of the Sill), www.girightslawyer. School of Law. His practice firm. com. will concentrate on Social Mr. Goodwin is a trial law- irginia (DeCarlo) Sand- Security disability law. yer who focuses his practice ers, formerly of Idabel, V ldridge Cooper Steichen in the areas of securities liti- announces she has joined the E& Leach announces the gation, complex commercial Oklahoma Indigent Defense appointments of Jessica L. litigation, and state and fed- System, Capital Trial Divi- Dickerson and Antonio eral appeals. He is a gradu- sion, in Norman. She may be L. Jeffrey to the position ate of OU, having received reached at P.O. Box 926, of associate attorney. Ms. degrees in economics and Norman, 73070-0926, Dickerson’s primary focus letters (with an emphasis in (405) 801-2692. is in the areas of products classical literature) in 1994, helly L. Dalrymple liability, employment law and a J.D. in 1997. Prior to Shas accepted a posi- and civil litigation. She joining the firm, he served as tion with Pangea3 in its graduated magna cum laude a law clerk for federal judges Mumbai (Bombay) offices with a B.A. in journalism Claire Eagan, Lee West and as vice president-legal ser- from OU. She received her Vicki Miles-LaGrange. vices (India). The company J.D. from the TU College of Ms. Warmington focuses provides legal outsourcing Law, graduating valedicto- her practice in the area of services in India to clients in rian of her class. Mr. Jeffrey’s labor and employment. She the U.S., Europe and Japan. primary focus is in the areas earned a B.A. from OSU in Ms. Dalrymple obtained her of products liability and 1995 and a J.D. from OCU J.D. from George Washing- civil litigation. He received School of Law in 1999. ton University in 1992. She his B.A. from Howard Uni- most recently practiced as a versity, Washington D.C.; Ms. Hughes’ practice partner with EldridgeCoo- M.B.A. from the University focuses on commercial litiga- perSteichen & Leach PLLC of Phoenix; master of public tion. She earned a B.A. from in Tulsa, where she focused administration from OU; OU in 1996 and a J.D. from on products liability class and J.D. from the TU College the OU College of Law in actions and employment of Law. 1999.

2002 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 Ms. Huntsman focuses represented individuals 320 S. Boston, Suite 1118, her practice in the areas of and large corporations for Tulsa, 74103-4700. Ms. Rob- commercial litigation and the past 32 years in a broad ertson and Ms. Cornell are arbitration. She earned a array of corporate and com- both graduates of the TU B.A. from the University of mercial matters. He also College of Law and will Arkansas in 1996 and a J.D. practices in the health law continue to practice in the from Harvard Law School in area representing physicians area of family law, including 1999. and health organizations, divorce litigation and collab- and he currently chairs the orative divorce process. The ov. Brad Henry has OBA Health Law Section. firm’s Web address is www. Gappointed Natalie Mr. McKinney received his tulsadivorce.com. Shirley as executive director J.D. from Columbia Uni- of the state Department of versity School of Law and ryant Law Firm PLLC Commerce. Ms. Shirley pre- a B.A. in physics from Rice Bannounces Robert J. viously served on the gov- University. Carlson has joined the firm ernor’s cabinet as secretary as an associate, having pre- of Commerce and Tourism. oolsby, Olson & Proc- viously practiced in both She is former president and Gtor announces Bryan Oklahoma City and Tulsa. chief executive officer of ICI E. Stanton has joined the Mr. Carlson received his J.D. Mutual Insurance Group in firm as an associate in its from the TU College of Law Washington, D.C. She gradu- Oklahoma City office. Mr. in 2001 and also holds a M.S. ated from OSU in 1979 and Stanton earned his J.D. from in economics from OSU. He earned a law degree from TU College of Law in 2001. concentrates his practice in OU in 1982. His practice will focus on complex business litigation insurance law, litigation and and may be reached at (918) irsten Ingrid Bernhardt personal injury. He can be 587-4200 or at rcarlson Kannounces the opening reached at the firm located at @bryantlaw.com. of her law office in Tulsa. 701 N. Broadway Ave, Suite A 1986 graduate of the OU 400, Oklahoma City, 73102; ale Cazes has joined College of Law, Ms. Bern- (405) 524-2400; bstanton DArthur J. Gallagher Risk hardt will concentrate her @goplaw.com. Management Services Inc. practice on criminal law and as an account executive and family law matters. Her helton Voorhees Law producer. Mr. Cazes will office is in the Beacon Build- SGroup announces the concentrate in providing ing, 406 S. Boulder Ave., addition of Ginger K. Maxt- property and casualty insur- Suite 411, Tulsa, 74103, (918) ed to the firm. Ms. Maxted ance and risk management 582-0982; e-mail: Kirsten@ received her J.D. from St. services to members of the tulsafamilylawyer.com. Louis University School of legal, accounting and engi- Law in May 2003. Her prac- neering professions, clients onner & Winters LLP tice will concentrate in civil involved in the real estate, Cannounces that Paige N. litigation, with an emphasis hospitality and healthcare Shelton has joined the firm’s on insurance and real estate industries, as well as clients Tulsa office as an associate. litigation. Shelton Voorhees involved in mergers and Ms. Shelton will work pri- Law Group is located in the acquisitions. Prior to joining marily in the business and Bank of Oklahoma Build- Gallagher, Mr. Cazes was an commercial litigation prac- ing at 7701 S. Western Ave., attorney for Phillips McFall tice areas within the firm. Suite 201, Oklahoma City. McCaffrey McVay & Mur- She earned her B.A. degree Ms. Maxted may be reached rah PC and Green Brown & from Vanderbilt Univer- at gmaxted@sheltonlawOK. Stark PC, both in Oklahoma sity with a double major in com. City. He holds an LL.M. mathematics and economics in taxation from the SMU in 1997 and her law degree, oura A.J. Robertson School of Law and a J.D. with highest honors, from Mof the Robertson Law from OCU School of Law. TU in 2004. Firm PLLC and Melissa F. Cornell of Wagner & Cornell dam E. Miller has ableGotwals announces LLP announce they have Ajoined the U.S. Depart- Gthat David B. McKin- joined each other in the prac- ment of Justice, Office of the ney has joined the firm as tice of law under the firm U.S. Trustee in the Kansas a shareholder in the Tulsa name of Robertson Cornell. City, Mo., field office as a office. Mr. McKinney has Their offices are located at trial attorney through the

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 2003 2006-07 Attorney General’s Clarke as a shareholder in Honor Program. He recently its Tulsa office. Ms. Clarke received his LL.M. degree in concentrates in the areas of banking and financial law medical malpractice defense, from the Morin Center for professional liability, bad Banking and Financial Law faith defense and civil trial at the Boston University practice. Her other areas of School of Law. He is a 2006 practice include healthcare, ay Adkisson has given graduate, summa cum laude, insured claims and products Jseveral recent presenta of the OCU School of Law. liability. She received a B.A. tions. In May, he gave the from OU and her J.D. from aniel P. Lennington following presentations: OCU School of Law. Drecently joined the “Understanding Captive Oklahoma attorney general’s artzog Conger Cason Insurance Companies” at the Environmental Protection H& Neville is pleased to 5th Offshore Alert Financial Unit as an assistant attorney announce that Christa Rich- Due Diligence Conference general. Mr. Lennington ardson has joined the firm. in Miami; “Asset Protection: graduated from the Valpara- Ms. Richardson previously 10 Things You Must Know” iso University School of Law was an associate at Bryan at the Michigan bar’s 20th in 2001. He was previously Cave LLP in Kansas City. Annual Michigan Tax Con- employed by Warner, Nor- She will focus her practice ference in Detroit; “Asset cross and Judd LLP in Grand in business transactions and Protection for the OB/GYN” Rapids, Mich., where he con- real estate. She received her at the American College of centrated in environmental J.D. with honors from the Obstetricians and Gyne- litigation. OU College of Law. cologists in San Diego; and “Busting Asset Protection eremiah Streck recently cAfee & Taft has Schemes” at the U.S. Attor- Jjoined the attorney Mexpanded its litiga- neys’ Office of Legal Educa- general’s Consumer Protec- tion practice group with tion’s Criminal Asset Recov- tion Unit. Mr. Streck earned the recent addition of trial ery Summit in Columbia, his J.D. from TU in 2006. He lawyers Vickie J. Buchanan S.C. Mr. Adkisson will make previously served as general and Rodney K. Hunsinger the following presentations counsel for Wilbanks II. Ms. Buchanan’s practice in July and August: “Under- Securities Inc. in Oklahoma encompasses a wide range standing Charging Orders” City. of business-related litigation for the Orange County Bar in state and federal courts Association in Irvine, Calif.; mma Arnett has been and in commercial arbitra- “Captive Insurance Strate- named a state’s attorney E tion. Previously, she was a gies” at the Best Practices of in the Tulsa West Child Sup- director with another large America 2007 Symposium port Enforcement office. civil practice law firm in in San Diego; “Understand- Ms. Arnett received her Oklahoma City. She gradu- ing Elder Scams” at the New undergraduate degree from ated summa cum laude from York State Bar Association Kalamazoo College and her NSU in 1996 and went on Elder Law Section Annual J.D. from the TU College to graduate with distinction Meeting in Stowe, Vt.; and of Law. She also earned a from the OU College of Law “Asset Protection -- 10 certificate in victim’s assis- in 1999. Mr. Hunsinger’s Things You Must Know” at tance through the Center on the Texas Society of Certified Violence and Victims Stud- experience has focused on business and commercial Public Accountants annual ies at Washburn University. meeting in San Antonio. Prior to joining the Tulsa litigation. He graduated West office, she was engaged magna cum laude from NSU o Anne Deaton recently in private practice in Tulsa. with a bachelor’s degree in Jmade a presentation to the The Tulsa West CSE office is accounting in 1999, became a Eastern Oklahoma Medical located at 440 S. Houston, CPA in 2002 and graduated Group Management Associa- Suite 401, Tulsa, 74127-8927. with distinction from the OU tion on “Employment Law College of Law in 2003. He Fundamentals for Managers he law firm of Hall, Estill, previously worked as a liti- and Supervisors.” The pre- THardwick, Gable, Golden gation associate with another sentation was given at the & Nelson PC announces the large civil practice law firm addition of Margaret M. in Oklahoma City.

2004 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 association’s recent monthly at Horseshoe Bay, Texas. In study followed a complex air meeting. May, he taught Oklahoma quality enforcement action human resources leaders on from initiation to resolution. raydon Dean Luthey their strategic role in identi- GJr. recently spoke to the fying and preserving digital ayle L. Barrett, Adam Tulsa chapter of the Okla- evidence for internal inves- GW. Childers, H. Leon- homa Society of CPAs. With tigations, agency proceed- ard Court, Jeremy Tubb, approximately 60 people in ings, and litigation and on Courtney K. Warmington attendance, he addressed effectively using document and Madalene A.B. Witter- liabilities of directors of retention and technology use holt will discuss topics such business and non-profit policies. as blogging, workers’ com- corporations. pensation, the Family and Several Oklahoma assis- Medical Leave Act, wage ic Albert recently spoke tant attorneys general gave and hour law and how to Vat the Oklahoma Alli- recent presentations. Wil- avoid claims of retaliation by ance for Civil Rights annual liam O’Brien spoke to the employees and workplace meeting. Mr. Albert instruct- Engineering Club of Oklaho- misconduct at an upcom- ed in the program titled ma City about the Oklahoma ing seminar titled “What “Developing and Adminis- Department of Veterans You Need to Know: Recent tering the Interactive Process Affairs and the programs it Developments in Employ- Required under the ADA offers to Oklahoma’s veter- ment Law.” The seminar will and FMLA.” The Oklahoma ans. Brinda White spoke at take place from 9 a.m. to 4 Alliance for Civil Rights is the Ninth Annual Oklahoma p.m. Aug. 9 at the Ardmore an organization comprised Labor/Management Con- Convention Center. of individuals in the pri- ference in Oklahoma City vate and public sectors who about the Public Employee administer human resources Relations Board and her role and employee development as its legal counsel. Preston How to place an announce- for private companies and Draper and Jay Schneider- ment: If you are an OBA state agencies. jan recently presented a CLE member and you’ve moved, arrie Palmer Hoisington program to the Cleveland become a partner, hired an County District Attorneys associate, taken on a partner, Crecently addressed the received a promotion or an Trial Attorneys of America Office, together presenting award or given a talk or speech on the topic of litigation information about recent with statewide or national readiness in the age of e-dis- developments regarding the stature, we’d like to hear from covery during the group’s criminal appeals process, you. Information selected for annual meeting in Chicago. victim impact statements publication is printed at no Ms. Hoisington also orga- and the clemency process. cost, subject to editing and nized and moderated the Julie Bays spoke in July at printed as space permits. panel discussion focusing the Shawnee Senior Center Submit news items (e-mail on ways attorneys can assist about consumer fraud and strongly preferred) in their clients in preparing for the elderly. writing to: e-discovery requirements in atthew Paque, an envi- Melissa Brown advance of litigation. Public Information Dept. Mronmental attorney Oklahoma Bar Association hristopher S. Thrutch- supervisor at the Oklahoma P.O. Box 53036 Cley taught on fulfilling Department of Environ- Oklahoma City, OK 73152 legal and ethical duties in mental Quality, recently (405) 416-7017 preserving and producing presented an environmental Fax: (405) 416-7001 or electronically stored infor- enforcement case study at E-mail: [email protected] mation at the Oklahoma the 10th Annual EPA Air Articles for the Sept. 1 issue Association of Defense Inspectors Workshop in must be received by Aug. 13 Counsel’s June conference Galveston, Texas. The case

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 2005 IN MEMORIAM

ouglas A. Carter of Bronze Star and Purple Heart. in a log cabin in Cherokee DChickasha died May He was also awarded the County on March 4, 1947. He 15. He was born March 12, Croix de Guerre with Silver served in the U.S Navy Medi- 1950, in Syracuse, N.Y. He Star from the French govern- cal Corps during World War attended the State University ment. He returned to Pauls II. He was a graduate of NSU, of New York, went on to earn Valley and practiced law until worked several years form a B.A. in history from Western his retirement. He was active Amoco Oil, then graduated Kentucky and earned his J.D. in volunteerism and communi- from TU College of Law and from OU. He was stationed in ty involvement, and was a past became an attorney when he Germany while serving in the president of the Garvin County was 43. His hobbies included U.S. Army. He served as an Bar Association. Among his square dancing, bridge and attorney for the Social Security survivors is his son, OBA traveling. He was also a 33rd Administration in the Office member Walter Dean Hart Jr. Degree Mason. Memorial of Hearings and Appeals. He donations may be made to was a member of the National ickey James of Okla- Clarehouse Hospice of Tulsa. Organization of Social Security Mhoma City died May Claimants Representatives and 11. He was born Feb. 1, 1940, effrey G. Levinson of Tulsa the National Bar Association. in Norman and graduated Jdied June 27. He was born in Memorial donations may be from Northwest Classen High Tulsa Aug. 28, 1957. He made to Legal Aid of Western School in 1958. He earned an earned an undergraduate Oklahoma; Epworth United undergraduate degree from degree from Brown University Methodist Church, Chickasha; OCU in 1962 and a J.D. from in 1979 and a J.D. from Van- Multiple Sclerosis Society, the OCU School of Law in derbilt Law School in 1982. He Oklahoma Chapter; or Legal 1966. He began practicing as practiced commercial and real Aid Services of Oklahoma. a trial lawyer with Clarence P. estate law in Tulsa for many Green and became a partner years, and was also a member alter D. Hart of Pauls in the Green and James law of the Florida Bar Association. WValley died March 18. He firm in 1969, where he focused He chaired the community re- was born in Pauls Valley Oct. in civil litigation. He served lations committee of the Jewish 3, 1916, and lived there most on the Oklahoma County Federation of Tulsa from 1991- of his life. He attended Classen Bar Association’s Fee Griev- 1996. He also served on the High School in Oklahoma City ance and Ethics Committee board of directors of the Jewish and Virginia Military Institute. for nearly a decade. He tried Federation as well as the Tulsa He earned a B.A. from OU in the only case before the Court Metropolitan Ministry. He 1938 and a law degree in 1941. on the Judiciary where he was also a devoted sports fan, He served during World War represented Judge Gar Gra- particularly of baseball. Memo- II, attaining the position of ham. He was a certified scuba rial donations may be made to company commander of B diver and small aircraft pilot the American Cancer Society Company – 602 Tank Destroy- with private, instrument and or the M.D. Anderson Hospital er Battalion. He served in the commercial ratings. Memorial in Houston. European Theater, participat- contributions may be made to ing in the first liberation of a Shriners Children’s Hospital in etired District Judge J. Nazi Concentration Camp at Shreveport, La. RKenneth Love died June Ohrdurf, Germany. He was 15. He was born Oct. 24, 1927, awarded numerous medals ohn P. Kerr of Tulsa died in Tishomingo and attended including the Silver Star, JJune 14. He was born Tishomingo and Purcell

2006 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 schools. He graduated from erbert J. Mesigh of Okla- teven Lawrence the high school at Oklahoma Hhoma City died April 19. SSessinghaus of Tulsa died Military Academy in 1945. He He was born Jan. 25, 1926, in June 26. He was born in Tulsa was a U.S. Army paratrooper Azusa, Calif., and graduated on Aug. 28, 1957, and grew up from 1946-1947 and served high school in Atchison, Kan. in Oklahoma, Arizona, Cali- in the Korean War from He joined the U.S. Navy at fornia and Nevada. He gradu- 1950-1951. He received his age 17, serving from 1943- ated from OU with a B.A. in bachelor’s degree in business 1946 in the South Pacific. He philosophy in 1979 and earned from ECU in 1952, worked returned to the states, earn- his J.D. from TU in 1982. He for Conoco, then earned a J.D. ing an undergraduate degree worked for Shepard’s in Colo- from OU in 1967. He practiced from the University of Kansas rado Springs and was a former in Moore until 1972, where and later a degree in business candidate for Tulsa County he also served as municipal administration from TU. He District Attorney. He practiced attorney, then was appointed earned a J.D. from OCU and in the areas of bankruptcy, ap- as special district judge for served in private practice for pellate and civil litigation, and Cleveland County. He gradu- several years. He also served constitutional law in Skiatook ated from the National Judicial as assistant district attorney and Tulsa. Memorial donations College in Reno, Nev., elected and was appointed municipal may be made to the American associate district judge for judge in 1982. He served in Cancer Society. McClain County in 1979 and that capacity until his retire- elected district judge for Mc- ment in 2003. His hobbies in- erence (Terry) W. Smith Clain, Garvin and Cleveland cluded golf, bridge and dance. Tof Tulsa died June 24. He counties in 1982, where he Memorial donations may be was born July 12, 1941, in Tulsa served until his retirement in made to Our Lord’s Lutheran and earned an undergradu- 1993. He was also a licensed Church Endowment Fund. ate degree and law degree pilot and played the clarinet. from TU. He served in the harles Nesbitt of Okla- Army JAG Corps during the alph Doak McKinney of Choma City died July 5. He Vietnam War. He retired after RSanta Fe, N.M. died May was born Aug. 30, 1921, in Mi- many years as a Department 13. He was born July 16, 1911, ami. He attended Central High of Defense attorney. Memorial in Duncan. He graduated School in Tulsa and graduated contributions may be made to from Marlow High School, from OU with a B.S. in govern- St. Francis Hospice or to the then went on to attend the ment in 1942. Immediately af- children’s ministry of Asbury Stanton Preparatory School in ter graduation, he reported for United Methodist Church. Cornwall, N.Y. before enter- service in the Army, serving ing the U.S. Military Academy as a tank gunnery specialist arold C. Stuart of Tulsa in West Point. He served a in Bavaria during World War Hdied June 25. He was born three-year tour of duty in the II. He retired from the Army July 4, 1912, in Oklahoma City Phillippines, then served in Reserves as major in 1950. and attended Classen High World War II primarily with He earned his J.D. from Yale School. He earned his bache- First Cavalry Division. He University in 1947. He prac- lor’s and law degrees from the was awarded the Bronze Star ticed oil and gas law in Okla- University of Virginia, where and Purple Heart medals. He homa City, retiring in 2001. He he won two NCAA boxing retired from the Army in 1956. served as Oklahoma attorney championships, and completed He graduated from the Stetson general from 1962-66, chaired post graduate at the American University College of Law in the Oklahoma Corporation Management School in New 1960 and practiced law actively Commission from 1968-75 and York City and at the Harvard until 1966. He divided his time served as Oklahoma secretary Business School. He served between homes in Marlow and of energy from 1991-95. Me- as an officer in the Army Santa Fe after his retirement. morial contributions may be Air Corps during World War made to St. Paul’s Cathedral in II and later as an assistant Oklahoma City. secretary of the Air Force. He

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 2007 was a partner in the Tulsa firm aymond E. Theimer of Doerner and Stuart and prin- REdmond died May 30. He cipal in Southwestern Sales was born April 22, 1931, and lice Louise “Lou” Earhart Corp. (now First Stuart Corp.). graduated from Northeast Aof Oklahoma City died Memorial contributions may High School in Oklahoma City. July 14. She was born Aug. be made to Up with Trees or He served in the Army after 18, 1921, in Oklahoma City, to Stuart Park at the Gilcrease high school. He completed graduating from Classen High Museum. a business degree at OU and School in 1940. Ms. Earhart then earned an L.L.B. from the worked more than 20 years aul D. Sullivan of Duncan OU College of Law. He worked as OBA receptionist, mak- Pdied June 19. He was born in the County Attorney’s ing many friends in the legal Jan. 21, 1918, in Norman. He Office before beginning his profession. She was honored attended Duncan High School private practice, and he was by the Oklahoma House of and OU. He was commis- also the founder and operator Representatives when she pro- sioned a second lieutenant in of two petroleum companies. moted an initiative to encour- the Army after graduation, He loved music and played age “random acts of kindness.” serving during World War II several instruments. He also She will be remembered for as a battery commander in enjoyed cooking and flying her positive attitude, friendly Europe, including participa- his plane. Memorial donations nature and love of life. One of tion in the Battle of the Bulge. may be made to her most notable relationships He remained in the Army diabetes research at the was with former OU Football Reserve until 1978, attaining Oklahoma Medical Research Coach Barry Switzer. She kept the rank of colonel in the JAG Foundation. an autographed picture of Corps. He began practicing coach Switzer by her side at all law in Duncan in 1947 with a ichard Lynn Thompson times, and Coach Switzer often family firm now called Leach, Rof Langley died May 8. called her to visit and stay in Sullivan, Sullivan & Watkins. He was born May 18, 1962, touch. She also counted as a Among his survivors are his and attended Clerendon High dear friend Oklahoma County sons, OBA members Michael P. School in Texas and Texas Tech Commissioner Ray Vaughn, Sullivan and Kent P. Sullivan, University. He graduated from whom she met through her both of who have joined the the TU College of Law in 1989. service to the OBA. family’s firm. He was active He was a partner in the Harris, in Duncan civic and commu- McMahon, Peters, Thompson nity service, a member of the and Stall. He was a member of ABA and past president of the the Tulsa County Bar Associa- Stephens County Bar Associa- tion, Fellowship of Christian tion. Memorial donations may Athletes and also enjoyed be made to the Memorial Fund yachting and golf. Memorial for Duncan First Christian donations may be made to Church, Chisholm Trail Hos- the Hali Project, 4515 Cornell, pice or Special Olympics. Amarillo, Texas, 79109.

2008 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 OBA/CLE presents

Gain the Edge!® Latz’s Golden Rules of a Negotiation - Part B - A Webinar-

DATE: October 16, 2007 TIME: 1:00 p.m - 2:00 p.m

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 1.0 hour of mandatory CLE Credit, including 0 hours of ethics. This is considered live MCLE seminar credit, not online seminar MCLE credit. Questions? Call (405) 416-7006

TUITION: $50. No discounts. Register online at www.legalspan.com/okbar/telephone.asp

CANCELLATION POLICY: Cancellations, discounts, refunds, or transfers will not be accepted.

Tele-W eb seminars use both the telephone and the Internet. Attendees listen to faculty over the telephone and also follow along over the Internet. These interactive seminars, in some cases allow attendees to submit questions to the faculty through their computer in addition to asking questions over the phone.

About the Program:

YOU NEGOTIATE EVERYDAY! In fact, your ability to effectively negotiate may be the most critical skill you possess. Yet most negotiate instinctively or intuitively. This teleseminar will help you approach negotiations with a strategic mind set.

And make no mistake – no matter how much you have negotiated, you can still learn. Adding that one new tactic may be the difference between winning and walking away empty-handed.

eIn this s cond of three teleseminars, national negotiation expert Martin Latz will help make YOU a more effective negotiator by focusing on his following Golden Rules of Negotiation – Employ “Fair” Objective Criteria and Design an Offer-Concession Strategy. Secrets to success in emotionally charged negotiations • How to keep options open while building future relationships • W ays to keep that “fair and reasonable” hat on your head • First offer dynamics – when to make it and when to wait • Tactics to close your deal or finalize your settlement •

About Martin E. Latz:

ABC News’ This Week anchor George Stephanopoulos has called Marty Latz “one of the most accomplished and persuasive negotiators I know.” The founder of Latz Negotiation Institute, Latz has taught over 40,000 lawyers and business professionals to more effectively negotiate. A Harvard Law honors graduate, Latz is the author of Gain the Edge! Negotiating to Get What You Want and has appeared as a negotiation expert on CBS’ The Early Show and such national business shows as Your Money and First Business. For more visit www.NegotiationInstitute.com.

Register online at www.legalspan.com/okbar.telephone.asp

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 2009 OBA/CLE presents

Gain the Edge!® Latz’s Golden Rules of a Negotiation - Part C - A Webinar-

DATE: December 5, 2007 TIME: 1:00 p.m - 2:00 p.m

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 1.0 hour of mandatory CLE Credit, including 0 hours of ethics. This is considered live MCLE seminar credit, not online seminar MCLE credit. Questions? Call (405) 416-7006

TUITION: $50. No discounts. Register online at www.legalspan.com/okbar/telephone.asp

CANCELLATION POLICY: Cancellations, discounts, refunds, or transfers will not be accepted.

Tele-W eb seminars use both the telephone and the Internet. Attendees listen to faculty over the telephone and also follow along over the Internet. These interactive seminars, in some cases allow attendees to submit questions to the faculty through their computer in addition to asking questions over the phone.

About the Program:

YOU NEGOTIATE EVERYDAY! In fact, your ability to effectively negotiate may be the most critical skill you possess. Yet most negotiate instinctively or intuitively. This teleseminar will help you approach negotiations with a strategic mind set.

And make no mistake – no matter how much you have negotiated, you can still learn. Adding that one new tactic may be the difference between winning and walking away empty-handed. In this third of three teleseminars, national negotiation expert Martizn Lat will help make YOU a more effective negotiator by focusing on his final Golden Rule of Negotiation Control the Agenda and on Situation Specific Strategies to use when you care about a relationship with your counterpart. Powerful agenda control techniques • Strategies to get past “No” – when all appears lost • W ays to effectively use deadlines and timing elements • Competitive techniques versus problem-solving strategies • Personality styles’ impact on negotiations •

About Martin E. Latz:

ABC News’ This Week anchor George Stephanopoulos has called Marty Latz “one of the most accomplished and persuasive negotiators I know.” The founder of Latz Negotiation Institute, Latz has taught over 40,000 lawyers and business professionals to more effectively negotiate. A Harvard Law honors graduate, Latz is the author of Gain the Edge! Negotiating to Get What You Want and has appeared as a negotiation expert on CBS’ The Early Show and such national business shows as Your Money and First Business. For more visit www.NegotiationInstitute.com.

Register online at www.legalspan.com/okbar.telephone.asp

2010 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 CLASSIFIED ADS

SERVICES SERVICES

LEGAL RESEARCH AND WRITING. Brief writing, AFARM Consulting, L.C. motions, civil appeals, and trial support since 1995. Lou Raleigh A. Jobes, Ph.D. Ann R. Barnes (918) 810-3755; [email protected] 2715 West Yost Rd Stillwater, OK 74075-0869 Phone (405) 372-4485 Fax (405) 377-4485 APPEALS and LITIGATION SUPPORT — Expert re- E-Mail [email protected] search and writing by a veteran generalist who thrives Agricultural Economic and Business Consultant on wide variety of projects, big or small. Cogent. Will provide independent and objective analysis of agricultural Concise. Nancy K. Anderson, (405) 682-9554, related problems. Resume and Fee schedule sent upon request. [email protected]. CIVIL APPEALS, RESEARCH PROJECTS, BRIEF WRIT- ABRAHAM’S SINCE 1959 NATIONWIDE ING, DISCOVERY ISSUES & LITIGATION SUPPORT. Experienced former federal law clerk will handle state BAIL BONDS and federal appeals, draft motions and briefs and assist Attorney’s EXPRESS Service in trial preparation. Amy H. Wellington (405) 641-5787, DISCOUNTED Bond Fees on Referrals E-mail: [email protected] OFFICE OPEN & STAFFED 24/7 Toll Free 1-877-652-2245 OKC 528-8000 MEDICAL MALPRACTICE INTERESTED IN PURCHASING PRODUCING & Board-certified doctor expert witnesses, all specialties: Non-Producing Minerals; ORRI; O & G Interests. $500 flat rate referral. In house case review by veteran Please contact: Patrick Cowan, CPL, CSW Corporation, MD specialists, $750 flat rate, opinion letter, no P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) extra charge. Fast, easy, safe since 1998. www.MedMalExperts.com (888) 521-3601 755-7200; Fax (405) 755-5555; E-mail: [email protected]. LET ME HELP with your Medical Record Review and Experts in Economic Damages Medical Chronologies. I am a Registered Nurse/Attor- Anderson Economic Group, LLC ney with hospital and nursing home experience. Lisa Lost Earnings Calculations, Commercial Damages, Stanton, (405) 285-0907, [email protected]. Antitrust, Business & Asset Valuations, Fairness Opinions, Franchise Disputes. Contact Patrick Fitzgerald at (405) TRAFFIC ACCIDENT RECONSTRUCTION 360-4040 or visit www.AndersonEconomicGroup.com INVESTIGATION • ANALYSIS • EVALUATION • TESTIMONY 25 Years in business with over 20,000 cases. Experienced in OF COUNSEL LEGAL RESOURCES — SINCE 1992 — automobile, truck, railroad, motorcycle, and construction zone Exclusive research & writing. Highest quality: trial and accidents for plaintiffs or defendants. OKC Police Dept. 22 appellate, state and federal, admitted and practiced years. Investigator or supervisor of more than 16,000 accidents. U.S. Supreme Court. Over 20 published opinions with Jim G. Jackson & Associates Edmond, OK (405) 348-7930 numerous reversals on certiorari. MaryGaye LeBoeuf (405) 728-9925, [email protected] OKC ATTORNEY has client interested in purchasing producing and non-producing, large or small mineral interests. For information, contact Tim Dowd, 211 N. HANDWRITING IDENTIFICATION Robinson, Suite 1300, OKC, OK 73102, (405) 232-3722, POLYGRAPH EXAMINATION (405) 232-3746 - fax, [email protected]. Board Certified Court Qualified Diplomate — ABFE Former OSBI Agent Life Fellow — ACFE FBI National Academy OFFICE SPACE Arthur D. Linville (405) 636-1522 SOUTH TULSA OFFICE SPACE — Office sharing ar- rangement with four attorneys, conference room, DSL MEDICARE – MEDICAID – HEALTH LAW Mark access, receptionist, telephone, copier, kitchen, free S. Kennedy, P.C. Attorneys and Counselors at Law – A parking, security system. Some referral potential. (918) Health Law Boutique concentrating practice in Health- 493-3360 care regulatory and payment matters and other Business Services to the healthcare provider and practitioner. For- GREAT DOWNTOWN OKC LOCATION — ONE merly Counsel to U.S. Department of Health and Human OFFICE AVAILABLE FOR SUBLEASE Receptionist, Services’ Centers for Medicare & Medicaid Services and phone, copier, fax, law library, kitchen, conference room Office of the Inspector General. Voice (972) 479-8755; Fax and DSL internet. Call Denise at (405) 236-3600 or come (972) 479-8756; [email protected]. by 204 N. Robinson, Suite 2200.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 2011 OFFICE SPACE POSITIONS AVAILABLE

LUXURY SOUTH TULSA LAW OFFICES. TurnKey DOWNTOWN OKC LAW FIRM seeks a self-motivated ready offices with extensive amenities and services associate with 3-5 years of experience in civil practice. available. Flexible lease terms. Virtual offices available. Salary commensurate with experience. Send resume Rates variable. Visit us anytime at 8816 South Sheridan and salary requirements to: Box “E,” Oklahoma Bar or www.TurnKeyReady.net or call (918) 494-0010 (Joel). Association, P.O. Box 53036, Oklahoma City, OK 73152. Confidential. NORTHWEST ARKANSAS LAW FIRM seeks tax DOWNTOWN OKC: Onsite Parking. Walk to Court. associate. LLM and accounting background pref- Four offices available & will lease individually. ered. Practice areas include estate planning, taxation, Internet, copies, color fax, reception, phone system, real estate and business representation. Mail, fax or voice mail, conference room & kitchenette. Corner of email cover letter, resume, and salary requirements to Reno & Walker. (405) 239-1000. Erma Palm, Harrington, Miller, Neihouse & Kieklak, P.A., 5507 Walsh Lane, Suite 102, Rogers, AR 72758 ABEL LAW FIRM has office space available at its new Fax (479) 271-7247 Email: [email protected] building, The White House. The White House is a converted estate mansion at the corner of N.E. 63rd and Kelley with easy access to I-44. Space includes TITLE EXAMINATION ATTORNEY position available. beautiful reception area, receptionist, library, fax Commercial and Residential examination experience machine, telephone system, conference rooms, required. Underwriting experience a plus. Please kitchen, workout facility and free parking. Call Ed mail, fax or email resume to: Stewart Abstract & Abel at (405) 239-7046. Title of Oklahoma, 701 N. Broadway, Suite 300, Okla- homa City, OK 73102. Attn: Gerri Heidebrecht. Gerri. [email protected] (405) 232-6764 phone, (405) POSITIONS AVAILABLE 232-5741 fax EXPANDING OKLAHOMA CITY BASED LAW FIRM AV RATED WOODWARD LAW FIRM seeks an with diverse litigation and business law practice (insur- attorney with 0 to 5 years experience in corporate, ance defense, construction law, commercial litigation) real estate, probate and estate planning. Please send needs five to ten year attorney. We are looking for ex- resume and references to Box “F,” Oklahoma Bar cellent academic record, exceptional research and writ- Association, P.O. Box 53036, Oklahoma City, OK 73152. ing skills, first chair trial experience and proven ability Compensation package commensurate with experience. to handle own caseload. Please send resume, writing sample and references to Box “G,” Oklahoma Bar As- OKC AV FIRM seeks associate with 2-5 yrs experience. sociation, P.O. Box 53036, Oklahoma City, OK 73152. The attorney must be a motivated self-starter. The position allows an attorney to handle his or her own NORTHEAST OKLAHOMA: 15 Attorney AV Rated Law case load with supervision. Law firm is interested in Firm is seeking two experienced attorneys, one to assist hiring an attorney who is interested in representing and take direct responsibility for complex estate planning plaintiffs. Excellent benefits. Send resume and salary and probate matters as well as business/transactional requirements to Box “Q,” Oklahoma Bar Association, matters, and another to assist in civil litigation. Firm’s P.O. Box 53036, Oklahoma City, OK 73152. clients are widely diversified, including significant institutional clients, estates, trusts and start up THE LAW FIRM OF HOLDEN CARR & SKEENS seeks businesses. Salary commensurate with experience. an experienced litigator for the firm’s Oklahoma City Send reply in confidence to Box “U,” Oklahoma office. Located in downtown Oklahoma City, Holden Bar Association, P.O. Box 53036, Oklahoma City, OK Carr & Skeens is an insurance defense firm with a broad 73152. client base and a strong, growing presence in Okla- homa City. The firm seeks attorneys with 10 years of OKLAHOMA CITY FIRM focusing mainly in personal experience or more in litigation and, in particular, jury injury and criminal law practice seeks associate. Com- trial practice. Proven track record in business develop- petitive salary. Flexible hours. All contacts will be kept ment required. Those seeking to ascend to leadership confidential. Send resume to Box “I,” Oklahoma Bar and build on the foundation for the firm’s Oklahoma Association, P.O. Box 53036, Oklahoma City, OK 73152. City operations are encouraged to inquire. The firm strives to be the best and requests nothing less from ESTABLISHED FIRM wants experienced associate its members, therefore strong academic credentials and in oil and gas and general practice; and an associate trial practice skills are required. Salary is commen- experienced in general business and estate planning. surate with experience. All applications will be kept Salary based upon experience. Also, space to share in the strictest confidence. To inquire, please contact with established attorney in north OKC. E-mail to [email protected]. [email protected].

2012 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007 POSITIONS AVAILABLE POSITIONS AVAILABLE

AV RATED OKC FIRM NEAR DOWNTOWN seeks as- GROWING NW OKC LAW FIRM handling diverse sociate for estate and transactional position. Emphasis civil litigation, medical malpractice and securities ar- on estate planning, business planning, contracts and bitration cases, seeks an attorney with 0 – 5 years ex- tax disputes. Strong writing skills and academic back- perience for immediate position. Candidates must be ground required. All replies confidential. Send resume self-motivated with excellent research/writing skills. and writing sample to: Box “P,” Oklahoma Bar Associa- Responsibilities include research, brief writing, discov- tion, P.O. Box 53036, Oklahoma City, OK 73152. ery, depositions and court appearances. Compensation package commensurate with experience. Send resume, SMALL DOWNTOWN FIRM seeks legal assistant writing sample and salary requirements to dpeters@ experienced in personal injury cases. Knowledge of woskaswim.com or fax to (405) 285-9350. medical terminology helpful but not essential. Sal- ary commensurate with experience and performance. ABOWITZ, TIMBERLAKE & DAHNKE, P.C., an AV Please fax resume to (405) 228-3211 or call 232-8585. rated downtown OKC law firm, is seeking a motivated lawyer with at least three years experience in civil trial THE LAW FIRM OF HOLDEN CARR & SKEENS practice. Applicant should be energetic, write well, seeks a research and writing attorney with 3-5 years and be willing to devote the time and effort necessary experience to fill an immediate position in their Tulsa to provide the best legal services to our clients. Send office. Primary practice areas are insurance defense and Resume to P.O. Box 1937, Oklahoma City, OK 73101. general civil litigation. Salary is commensurate with experience. All applications will be kept in the strict- DOWNTOWN OKC AV-RATED LAW FIRM seeks a le- est confidence. To inquire, please contact MikeCarr@ gal assistant/receptionist. Requires strong word process- HoldenOklahoma.com. ing skills, experience with Microsoft Excel/Outlook, oral and written communication skills, organizational skills, positive attitude and professional appearance. Compen- EDMOND BUSINESS AND LITIGATION FIRM sation commensurate with experience. All replies held needing a full time assistant to perform light legal in confidence. Please send resume to: Box “M,” Okla- assistant work, filings, errands, and file organization. homa Bar Association, P.O. Box 53036, Oklahoma City, Applicants must be personable, well organized, and OK 73152. willing to work hard. Send resumes to Mike Rubenstein at 1503 E. 19th, Edmond, OK 73013 or BUSY PLAINTIFF ATTORNEY SEEKS APPLICANTS [email protected]. FOR ASSOCIATE ATTORNEY POSITION with a minimum of two years experience in social security. DOWNTOWN TULSA AV-rated law Firm seeks associ- A competitive compensation package commensurate ate to work in the Firm’s Business Law Section. Duties with experience. All contacts kept confidential. Send will include labor and employment law, general cor- resume to: Box “N,” Oklahoma Bar Association, P.O. porate transactions and real estate. Candidates should Box 53036, Oklahoma City, OK 73152. have up to three years experience in some or all of these areas, excellent academic record and the ability to han- dle multiple tasks. Salary commensurate with experi- BUSINESS OPPORTUNITY ence. Send replies to Box “S,” Oklahoma Bar Associa- Attorney/title insurance agent desires to purchase tion, P.O. Box 53036, Oklahoma City, OK 73152. title/closing company in Tulsa or surrounding communities. All replies will be held in strictest EDMOND BUSINESS AND LITIGATION FIRM seek- confidence. Please respond to Box “W,” Oklahoma ing an attorney with 5+ years experience with litigation Bar Association, P.O. Box 53036, Oklahoma City, OK in employment and business/transaction areas. Good 73152. salary and benefits for a self-starter who is looking to establish a long term relationship. Applicants must be FOR SALE organized, with good writing and research skills, and personable. Send resume and writing sample to Mike Rubenstein at RUBENSTEIN, BRYAN, McCORMICK SUCCESSFUL OKC AV-RATED family-law firm & PITTS, 1503 E. 19TH, Edmond, OK 73013 or mru- for sale or to enter into a partnership with Owner [email protected]. remaining of counsel instead. Contact D.R. at (405) 812-3870. Must sign nondisclosure agreeement. AV RATED HOLDENVILLE ATTORNEY seeking associate with 0-5 years experience. General practice. Emphasis on title, oil and gas, estates and probate. BOOKS Fax resume to: (405) 379-5446 or email to harold@ THE LAWBOOK EXCHANGE, LTD. Buys, sells and heathlawoffice.com appraises all major law book sets. Also antiquarian, OKC FIRM seeks attorney with 3-5 years litigation scholarly. Reprints of legal classics. Catalogues experience, preferably in the area of employment law. issued in print and online MasterCard, Visa Must have strong writing skills. Email resume to Jana and AmEx. (800) 422-6686; fax: (732) 382-1887; Leonard at [email protected]. www.lawbookexchange.com.

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 2013 WILLS Anyone with knowledge of a Will for William Bryan Atkins, Oralee Atkins, or Madeline Louise Bewley is asked to contact Linda Burkett-O’Hern at (405) 525- 3200 or 1-877-883-8827 or P.O. Box 891737, Okla. City, OK 73189-1737.

CLASSIFIED INFORMATION CLASSIFIED RATES: One dollar per word per insertion. Minimum charge $35. Add $15 surcharge per issue for blind box advertisements to cover forwarding of replies. Blind box word count must include “Box ____ , Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar. org for issue dates and Display Ad sizes and rates. DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in writing stating number of times to be published to: Melissa Brown Oklahoma Bar Association P.O. Box 53036 Oklahoma City, OK 73152 E-mail: [email protected] Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement To get your free be considered an endorsement of the procedure or service involved. All placement notices must be clearly listing on the non-discriminatory. OBA’s lawyer listing service!

Just go to www.okbar.org and log into your myokbar account.

Then, click on the “Find a Lawyer” Link.

2014 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007

Vol. 78 — No. 21 — 8/4/2007 The Oklahoma Bar Journal 2015 THE BACK PAGE Do You Hear That Sucking Sound? By Margaret Travis

HANDLE. at Home magazine that last Depot again made me studied dishwashers want to poke forks in like they were study- That’s my eyes. ing the atomic bomb. And then we’ll have to It also requires we decide on the features my house, find a babysitter - or that mean the most to someplace to dump us. Pot scrubbing is sucking the the kids. They sim- probably good. China ply do not have the washing probably not life right patience for it. Some- so much. And then one would probably we’ll have to locate the out of me. end up screaming and places that have the throwing themselves dishwashers with those on the floor and crying. features in our town or I couldn’t guarantee any surrounding ham- it would be one of the lets within a reason- Recently, the dish- has a lower sales tax children. washer went out. I vs. the store that will able driving distance. don’t know what’s install and deliver for Then my daughter Well, you get the idea. wrong with it. My free. decided she needed a I’m looking around my guess is it’s just old. handle for some project house now and begin- My husband said he You see, my husband at school. And then my ning to wonder, “What loaded it, started it and and I can’t just go buy son decided he needed else can go wrong?” went back in a little a damned microwave. one, or eight. And Cause I simply cannot later to a huge puddle It somehow always then I got up in the buy two major appli- of water in our kitchen turns into a Project, middle of the night to ances in one year. And floor. capital P. Sort of like go to the bathroom and that handle on the the cabinet handle he stepped on one which microwave is begin- This summer the put on the microwave. promptly went into the ning to look awful handle to the micro- It wasn’t on the cabinet trash. Suddenly I have shaky. wave broke. My hus- when we bought it but a receipt dated a year band put a cabinet han- for some reason when Ms. Travis practices in ago for 10 cabinet han- Oklahoma City. dle on the microwave. we went to install them dles and three drawer Classy, I know, but it they didn’t work. I put pulls (yeah, we’ve got works pretty well. It the bag of handles on no cabinet space in my has also put off the the back counter think- kitchen), and I have horrible task of going ing, stupidly I know, one drawer pull and to look at appliances. that I would take them two handles. You know the process, back to that mega If you have a going to the library super store we bought But the broken down possible article for to see what Consumer them from. But it took dishwasher may moti- The Back Page, Reports says about the us FOREVER to pick vate me. To begin e-mail it to various microwaves, handles that we could that awful process of [email protected]. then traveling all over agree upon. We went replacing.an.appliance. For more details see town to look at every to Lowe’s, Ace and two Because Oh My God it www.okbar.org/ single microwave in will turn into a night- Home Depots in town. obj/back.htm. our price range. Then The thought of going mare before it’s over. debating the relative and looking at EVERY. My husband will merits of the store that SINGLE.CABINET. have to find the CR

2016 The Oklahoma Bar Journal Vol. 78 — No. 21 — 8/4/2007