As a young associate lawyer in Richmond twenty-odd years ago, I remember one of the partners in my new firm handled a case of a young child on Medicaid who was denied a new drug to treat her leukemia because the drug was supposedly experimental, and Medicaid didn’t pay for “experimental” drugs. The girl died, and the partner was suing Mediciad for wrongful death. For your information, the administrators of Medicaid are entitled to “sovereign immunity” under Virginia law. Sovereign Immunity is based upon the common law of England that “the King can do no wrong” and that therefor the King can not be sued for committing a wrong. This idiotic notion has been carried over by Virginia and applies to the state and its employees, and to counties and municipalities and to just about any Tom, Dick or Harry who works for the state. Including those who administer Medicaid.
There are some exceptions, depending upon who you are trying to sue and why. Sometimes “gross negligence” or intentional wrongful acts are enough to overcome the immunity. Another exception for the low-level administrators of Medicaid is that sovereign immunity does not protect against a failure of a “ministerial act,” (generally an act that is defined and does not involve the use of discretion).
That is where the partner got past the claim for immunity. Medicaid’s own manual that was used to determine whether a procedure was or was not “experimental” explicitly noted that when Medicare paid for a certain drug or procedure, then that drug or procedure was not considered by Medicaid to be “experimental.” The partner proved that Medicare had been paying for the drug for quite some time because that governmental entity did not consider the drug experimental, and so Medicaid, by its own manual, did not consider the drug experimental, and should have treated the young girl rather than letting her die.
The bottom line, at least back then, was that even when past the sovereign immunity defense, the most that the grieving mother could recover for the death of her child (and to punish those idiots who did it) was $25,000, which was the limit of liability for tort claims against the state back then (since has been raised, maybe to $75,000, not positive).
So even twenty some years ago, for an insurance plan administered by the government, there were “death panels” that determined who would live and who would die. And if you were the aggrieved parent or loved one who died, there wasn’t a damn thing that you could do about it. (Sorry, can’t remember the child’s name.)
Smash Mouth Politics 