they please the court edward himmel farber the department of justice representing the united states in this action under the federal tort claims act this is a wrongful birth case in a wrongful birth case the doctor's negligence didn't cause the child's birth defects the claim of negligence with that the doctor negligently failed to provide the parents with sufficient information to allow them to decide whether or not to have an abortion unlike a typical medical  the first thing you do is move to dismiss that point because you can't sue me you know that i can't speak to the way the case was litigated and the early stages but  recipient she's not the medicaid recipient this is a question of peculiarly damages in a case involving the medical malpractise case involving physical injury to the point of it's different because the point of damages you try to come up with some kind you don't get that because under federal law the mother who is not a medicare recipient cannot be billed for these expenses so that is the argument we made in the brief the argument is these expenses are paid on behalf of the child who is the medicaid recipients the mother cannot be is against federal law to bill her for any of those expenses she's not she's not liable for them she's this soon is not paid anything for it the claim of  well if you have a lien the statute says that you don't get you don't do this but here let me tell you the lien here's the lien the lien in this case is against the child's recovery only against the child liens not against  i'm sorry that's correct the recipient is the child the child is the recipient the child is getting the money directly by be having the medical expenses paid that's correct that's the point you have exactly of hit it right on the mark here there's a difference there's a difference the the mother is getting the money but the lien doesn't operate against you that's the problem here that's the fundamental problem here the lien does not operate against the mother i have copies of the legal the use of the cords interest in the lien operates against the child's recovery under state law the child has no recovery we're in the big predicament here the mother is getting millions of dollars the lien doesn't operate against her and the operates only against the child under the provision that will exempt this from from the collateral sourced that you talks about recipient the recipient is the person who gets the money if you look at the legal where there is which we can provide for the court if you look at the lien loses recipient and names the child by his full name which i'll leave out for now so the child is the recipient they can't go against the mother that's all that really the mother the mother is recovering in her own right she was she was suing as a representative of the child also and that's how that's how the child that's what was dismissed was a rep it was a individual action and a representative action on behalf of the child the represented action was dismissed for the reasons we discussed earlier so the mother is left here as the plaintiff in your own individual right she's not there is that as you know as the parent of she is she's there because she's the parent that's what the cause of action just the law provides but she's not there because she's somehow connected with the recovery medic the getting medicaid under the state medicaid but well you could send it back to the district court but i think it's you know is it was let me let me see why it wasn't really spelled out as well as it should perhaps could have been as long as the mother was there in a represent common law collateral source rule we've paid the money we paid roughly seven hundred seventy that's yes they're ok under the state statute it i federal money at all and state money is state and federal government give the money the state it's all paid by the state in the story collateral source and can't it cannot among some money but i can't think can't be correct because this is federal money we can't we can prosecute people the civil division of the justice department brings false claims act again people who engage in medicaid fraud if this is the collateral source is the state medicaid well that's money comes from that but that's not correct either because the money comes primarily from the federal government and the purpose of that money giving them either the state i'm sorry from the federal government to the a collateral source a program like medicaid because i couldn't find it just seems like this is sort of a different question for purposes of trying to figure out what money has already been paid by the defend main and it means an individual or entity that is alleged to being liable to pay all or part of the cost of recipients medical treatment and medical related services whether for personal injury disease illness or disability your own or under west virginia carried west section nine five nine that preceded nine five eleven it makes it very clear in west virginia that a parent is responsible for the medical expenses of a child and nine five nine it's a separate statute it's and i just made an accurate misty sans is responsible for the medical care and the cost of the medical care of her child nine five on love and gives the medicaid folks and lean the argument or their orders and that because the mother completed the application for benefits for the child the mother is not a third party under the statute and five eleven statute the the west virginia supreme court in that case said and i quote this court finds absolutely no merit to james's contention that because his mother completed the application for benefits for him his mother is not  thereabouts if if for no other reason your honor under under an equitable remedy asseveration the h h are paid the bills what is the documentation where the the mall requires the state of west virginia when it come i axed money from misty sams for payment of this money to pay the federal government back its portion everybody's get  statutory first parenting link and then from that the state of west we obligated to the government the port everybody gets their money back i wish it were that i hope it's still that simple but let me just ask you this does that apply to future she's getting this big award for future payments which will in fact be paid by state medicaid and she is not going to that money to state medicaid or is she well it depends on whether he continues to get medicaid benefits and we don't know that if you guys going to if they do get paid by there is no lien there goes on future payments however under west virginia care under the m p i my future or the portion of the verdict for wide berth on an offer of proof during which time the defendant submitted evidence to the court that is relevant under a non analysis is submitted in federal registers that you see a attached to their brief they submitted the depositions of their expert witnesses separated out payments whether they would be covered and not pending or not covered and stuff and they produced and they submitted the deposition or the report i'm sorry i said deposition the report of the care plan are separated out the numbers as to what she said would be covered and what wouldn't be covered and if there are economists who then did the the calculations now here's pramod their life as they hear it's going to your class beggar that's great as eight million dollars that you say he is legally responsible for his future medical bills which normally don't look at the parent's income for there's not there's only one trusts under the so security regulations that qualify to remove assets away so the child continues to qualify for medicaid it's called a special needs trust it was designed and invented by a guy  chow the trust must pay first in line and this goes to your question judge the trust must pay first marine back to medicaid in the benefits that have been paid since discussion about will he be eligible for medicaid and knows what all of that is something the district court was supposed to have a hearing and figure out your honor six times during the pendency of this case pretrial motions pretrial motions hearing motion for directed verdict some i'm just sitting where i'm sitting seems like i just let the district court have the hearing pulled together this evidence sort of approach it as it should you know carefully under these three factors figure out how the collateral source rule applies to these future would have twenty four hour nursing care which the government says she should have she does she get sixty hours week and i don't care how you count as five days twelve hours a day the government and it's my firm for an expert said this happen it is mrs money the government has no right to ask this cork to take mrs m's money and and put it in a trust it's going to pay back to the government because the government wants that way going to get everything they want and we're saying it's nice but the courts don't work on hypothetical trust things that can happen how can this happen in this litigation approved agreed as a levy say all these things are gone then come back because everything you're telling me right now you're saying they're going to get everything they own we don't have to agree when there isn't lean or not that's established my mushkin your will which must be and even the most prudent thing for this leader to do is to set up this trust and do all this marvelous things here for his needs none of that is required no trust is set up not even even a question of the the lean arguably there's probably an argument as to whether that's they are not the recipient i understand your interpretation language and and there but all i'm saying is you are essentially not mechanisms that can be done at this point so that we can be satisfied well you got your money back with johns and that makes this we've got a hard time getting a government greedy thing in this case  if you can say you have zero give me your money back that's all they want i think let me give you an example ok judge chambers said miss sam's i'm going to give you this money but you have to give a million dollars i went back to the state government he's  and they are shaking their head yes we are taking their some discipline here maybe you don't like the way he's going to be given or you don't want to buy a new class hands to do it then that's a whole different thing i've never  acting is not going to happen you know for sure but i'm saying from a forward perspective this case the right one opportunity it is a very convoluted case it's a cause of action that is very new sprint around i'll give you that case because this is a very we we haven't even gotten to that oh no oh and it goes on and on you know i we we're the type you like to get in this stuff now and this is this is what we call it a good part of  they're giving us everything we want well i'll tell you what we want let me this summarize this is a worthwhile summary i think what we want this past damages are zero dollars and zero cents because of the nature that's right but i think reasonable what you can i understand you're responding to what mr moreland said that's not that's not what we want that's why we're here because that's not what we want for future damages for future damages what we want is we want to remain and with some instructions parent's income or assets so she has this not multimillion dollar recovery she could go to aruba tomorrow if you wanted to that's right we we've we've suggested we've suggested a trust and they've been fighting it all along yeah that's right that the way should be set up is the way we've suggested in point three of our brief as a reversionary trust that's right but that's an important thing and we would and i would hope that the  court would you know take our arguments seriously in the in point three of the brief that should be set up as a reversion address now avoids a lot of the speculative nature of future damages we can we can go back to the district judge and say this much is covered by medicaid this much is not normally there would be a trustee set up who would who would decide where the money goes and then you know given that the district judge admitted that the life expectancy he he determined is somewhat speculative that's that's a way of protecting  professional not normally this professional management of these trusts invested in they try to get a good return on it so that it's actually better than just sticking in her bank account using what i need twenty four hour nursing care that's right  an independent issue we've been told by west virginia that if they request that they will get that i can't speak to that that's what they've told us but but this will come of the future the trust will cover all it will cover all of the expenses of the child they're didn't get in the exercise he didn't he didn't exercise his discretion at all he said he thought the district judge thought that he could do it only if the law required him to do it and that is not the case up as a discretionary decision is now the mandatory decision is not meant to prohibit the decision either it's discretionary so the judge in the under the facts of the case has to look at it and decide whether in his discretion it's appropriate to do this  say that and but but we're right now we're asking for it be sent back so we can make the case to the judge that it should be set up you're going to get an answer force ok for you thank you very much thank you