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Television often mangles the law for purposes of telling a compelling story or to evoke an emotional response. "Law & Order" has been one show that has consistently avoided the David E. Kelly trap of valuing surprise and outrage more than accuracy. Unfortunately, this week's episode does seem more interested in manipulating our feelings than about presenting a clear and accurate picture of the current state of U.S. law.

While not an easy case for the police to break in this week's episode, our protagonists did manage to get the killer to plead guilty to killing a little girl by the midpoint of the show, traditionally the spot where they make the collar of the real perp. So, if the killer admits to the heinous crime and saves the taxpayers the expense of a trial, what can the District Attorney's office do with the remaining half hour?

Apparently, that borough of New York doesn't have enough criminals to prosecute, so they went looking for one. The District Attorney then prosecutes a Health Maintenance Organization (HMO) administrator alleging he was negligent, because he failed to provide a prison inmate with a psychiatric evaluation. This negligence provides the basis for a manslaughter conviction.

The DA argues that the motive in withholding the psychiatric evaluation was an intent to save money, because if the prisoner had been evaluated, he would have been found to be insane, and they would have had to keep him in custody. Instead, they released him with $1.50, a subway token, and a jar of pills that were supposed to keep him sane. The administrator was therefore negligent because he should have known that the prisoner would not take his medication; he should have known that the man had nowhere to go; and he should have known that the man would kill a little girl because of voices he hears in his head.

Now here's the accuracy problem: the state had contracted with an HMO to protect the health and welfare of county jail inmates. In taking over a traditional state function, the HMO becomes a state actor. As an agent of the government, it is entitled to the benefits of sovereign immunity, which protects the government and makes it immune from any lawsuit to which it has not consented. Wouldn't the HMO administrator also then be entitled to a form of immunity? After all, decisions he made were an exercise of his discretion in fulfilling his duties.

What do you think? Was the DA right to prosecute the HMO administrator? Or was this a case of looking for a convenient scapegoat? Let me know your opinion by posting a message to the FindLaw message board.

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