- Medical malpractice
Partner - London. United Kingdom
On June 2, 2022, Senate Bill S74A, also known as the Grieving Families Act, passed the New York Senate Assembly and is expected to be signed by Governor Kathy Hochul. Once in effect, the new law will expand recovery rights of a decedent’s surviving “close family” in a wrongful death case and substantially increase the monetary sum potentially awarded in a wrongful death action.
The history of wrongful death claims
The cause of action for wrongful death is the creature of statute rather than of common law, first created by the British Parliament in Lord Campbell's Act of 1846, then established in the State of New York by chapter 450 of the Laws of 1847, which is now embodied in EPTL 5-4.1. Caffaro v. Trayna, 35 N.Y.2d 245, 319 N.E.2d 174 (1974) aff’d Liff v. Schildkrout, 49 N.Y.2d 622, 404 N.E.2d 1288 (1980).
Under ETLP §5.4-1, a decedent’s family and/or estate had two years to commence a wrongful death claim, with the exception of certain tolls. Baez v. New York City Health & Hosps. Corp., 80 N.Y.2d 571, 607 N.E.2d 787 (1992).
Based on the language of ETLP §5.4-1, the New York Courts strictly interpreted the statute and limited recovery to pecuniary damages (tangible economic damages) defined in EPTL §5–4.3 and prevented recovery for non-economic damages (i.e. grief, loss of affection and fellowship, and loss of consortium). See, e.g., Tilley v. Hudson River Railroad Co., 24 N.Y. 471, 475–77 (1862); Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 52 N.E.2d 448 (1943) (stating ‘An action for wrongful death is for the recovery of pecuniary loss. Neither affection nor its absence is material to the issue’); Liff v. Schildkrout, 49 N.Y.2d at 622 (a widow’s consortium claim denied); Parilis v. Feinstein, 49 N.Y.2d 984, 406 N.E.2d 1059 (1980) (parents recovery for infant’s wrongful death limited to pecuniary damages); Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 572 N.E.2d 598 (1991) (adult grandchildren denied non-economic damages).
Similarly, the Court strictly applied the statute to limit who qualified as the decedent’s “distributees”. See, Langan v. St. Vincent's Hosp. of New York, 25 A.D.3d 90, 802 N.Y.S.2d 476 (2005) (surviving partner of same-sex civil union could not bring wrongful death action). EPTL §4–1.1 defined distributees as a surviving “spouse” and blood relatives (e.g., parents, issue, brothers and sisters).
However, the new law changes each of these long standing precedents.
The amendments to the wrongful death law
Section 1 amends EPTL §5-4.1 and extends the statute of limitation to 3 years and 6 months (previously 2 years) from the date of death. To the detriment of the Defendants, Plaintiffs now have an additional one year and six months to commence a lawsuit.
Section 2 amends EPTL §5-4.3(a) to permit recovery for emotional/non-economic damages. In particular, the statute now allows recovery for:
The amended language uses broad and frankly vague terms in encapsulating emotional damages. The statute fails to define the terms used (i.e. grief, anguish, love, comfort, companionship, etc…) and/or gives guidance on how to measure these claims as recoverable damages. No limits are placed on the sum recoverable under these broad claims. For example, how will one surviving close family member’s grief and loss be measured against another family member? What metrics will be relied upon to prove the negative impact resulting from the passing of a decedent? Will estranged children have rights to recovery? Will every individual on behalf of whom the case is commenced be entitled to damages or will these damages be granted as a lump sum to a family and thereafter divided? What guidance will the jury be given to monetarily quantify these emotional damages? In this new age of “nuclear verdicts” and social inflation already challenging insurers and business this will only add to the potential for crippling awards.
The new additions to the statute also provide grounds of recovery for psychiatric, physical damages and aggravation of pre-existing conditions by the grieving members. In essence, the surviving close family members now potentially have grounds for their own personal injury claim, if causally connected to the passing of the decedent.
Section 3 amends EPTL §5-4.4 to permit recovery by surviving “close family” members, which is now defined to include:
The new law expands who is entitled to recover damages. No longer are damages limited to a spouse, next of kin and, potentially, blood relatives. The term “close family” is not defined. The vague term has the potential to apply to non-blood relatives and individuals who do not have residency in the United States.
Section 4 amends EPTL §5-4.6 to replace “distributees” with “persons for whose benefit the action is brought”. The replacement of the word “distributees” gives fodder to the argument that non-blood relatives will be potential beneficiaries under the amended changes. Therefore, Section 3 and Section 4, when read together have the potential to greatly expand who can recover damages and stands to tremendously increase the recovery value of wrongful death claims.
Lastly, Section 5 states that the act shall take effect immediately and shall apply to all pending actions and actions commenced on or after such date. The immediate impact of this statute is on cases that fall within the two years period preceding the passing of the law. In essence, it has some retroactive impact and should not be ignored.
In sum, there are various unknowns surrounding the interpretation and application of the statutory language that will need wend their way through the court system. However, one thing is clear, the potential exposure to defendants litigating wrongful death claims in the State of New York will likely increase exponentially until these questions are addressed.