UNIVERSITY OF IDAHO TIP SHEET: Idaho Law Review Symposium to Examine Legal Issues in Healthcare
Tuesday, April 8 2008
March 31, 2008 University of Idaho law professor, former chief deputy attorney general and law student available to media to address the law’s impact on the state’s citizens and healthcare professions MOSCOW, Idaho – The privacy rights of patients, the informed consent by patients to medical procedures and the processes for resolving claims of medical negligence will be among the topics examined at a symposium in Boise on April 10-11. The symposium is sponsored by the Law Review at the University of Idaho College Of Law. On the issue of medical negligence, for example, proving that a healthcare provider has caused injury can be a challenge in Idaho. The state’s law requires proof of negligence according to the standard of care established by other healthcare professionals practicing in the same geographic area. That geographically specific burden of proof may be a roadblock to justice, some Idaho attorneys argue. The 2008 Idaho Law Review Symposium, “Law and Healthcare: Bridging the Divisions,” will examine the law giving rise to this controversy, and an overview of the impact of Idaho law on the standard of care in the state. The symposium will present varying perspectives on these issues, analyzed by a select group of scholars, medical and legal professionals, state legislators and community members. The symposium’s main event is scheduled from 8 a.m. to 4:30 p.m., Friday, April 11, at the Red Lion Hotel Boise Downtowner, 1800 Fairview Avenue in Boise. Small classes on health law also will be offered from 2-4 p.m. Thursday, April 10. A University of Idaho professor of law, a former Idaho chief deputy attorney general and a University of Idaho law student will be among the legal minds exploring the state’s health care law. They are available to answer questions on Idaho’s health care laws in general, and on their specific topics of discussion. Their symposium presentations will include:
- Monique C. Lillard, professor of law, will focus her talk on Idaho legislation enacted in 1976. The controversial Idaho Code §§ 6-1012 and 6-1013, sets the standard of care in medical malpractice actions and establishes how a plaintiff must prove that standard. She will explore the legislation’s imposition of the “strict locality” rule, under which a healthcare provider need practice only to the standard of others in his geographic location to meet the standard of care. Lillard will argue that the strict locality rule – with its requirement for proving the local standard of care – has a negative effect on injured plaintiffs seeking to prove their claims. Lillard also will analyze the development of Idaho case law in the wake of that legislation, and the trend in Idaho’s trial and appellate courts to rigidly apply the statutes, sometimes “advancing a pro-defendant policy and barring apparently meritorious claims of injured plaintiffs.” She argues for the judiciary to ease the scrutiny applied at the summary judgment phase and allow more claims to proceed to trial. She also calls for legislative reassessment of sections 6-1012 and 6-1013 in view of modern theories of medical error reduction. CONTACT: (208) 885-7022 or lillard@uidaho.edu.
- Jack McMahon, former chief deputy attorney general for Idaho, will explore whether a pre-litigation tool, implemented by that same 1976 legislation, is meeting the legislature’s expectations. McMahon now is a private attorney who serves part-time as staff director of the College of Law pro bono service program. Since 1976, the Idaho Legislature has required that anyone bringing a malpractice suit against an Idaho doctor or hospital must first submit to a pre-litigation screening panel. The panel – consisting of an attorney, a doctor, a hospital administrator and a lay panelist – is provided by the Idaho State Board of Medicine. The process is informal and the panel’s report is in the nature of a recommendation, which is inadmissible in any subsequent litigation. For plaintiffs representing themselves without the help of a lawyer, the screening panel is generally their “day in court.” For represented parties, the panel provides an early, neutral evaluation of the strengths and weaknesses of the claim and the defense. CONTACT: (208) 602-4997 or jmcmahon@uidaho.edu.
- Jennifer Klocke, a second year law student at the University of Idaho, will discuss questions of privacy and free speech as they apply to healthcare. At issue is the sale of patient data considered “de-identified” when information such as name, address and social security number is either removed from records, or encrypted in accordance with the HIPAA privacy rule. Computers with decryption capabilities can unscramble the information, and are used to compile data from pharmacies and insurance companies, assigning each patient a number rather than displaying names. The rise of data mining has allowed pharmaceutical companies to tailor their marketing messages doctor-by-doctor, with knowledge of the demographics of physicians’ patients, and what types of sales pitches have shown to be effective with a particular doctor in the past. Klocke argues that an update to the HIPAA privacy rule would be the most effective solution to these problems. She urges courts to uphold state laws designed to combat these issues in the meantime. CONTACT: (208) 285-1275 or jklocke@vandals.uidaho.edu
About the University of Idaho
The University of Idaho helps students to succeed and become leaders. Its land-grant mission furthers innovative scholarly and creative research to grow Idaho's economy and serve a statewide community. From its main campus in Moscow, Idaho, to 70 research and academic locations statewide, U-Idaho emphasizes real-world application as part of its student experience. U-Idaho combines the strength of a large university with the intimacy of small learning communities. It is home to the Vandals. For information, visit www.uidaho.edu.