Thursday, 02 February 2023 14:34

The Grieving Families Act: What Is It and What Happened?

By Giovanna D’Orazio, of D’Orazio Peterson | Business
The Grieving Families Act: What Is It and What Happened?

This week, Governor Hochul vetoed the Grieving Families Act, which had passed the Senate and Assembly and was awaiting her signature.  The Grieving Families Act would have expanded New York’s wrongful death statute by, most significantly, allowing a family member to recover for their emotional distress caused by the loss of a loved one.  There are different pieces to this proposed legislation, but this article will focus on emotional distress damages. 

Governor Hochul has expressed her support for the emotional distress piece of the Grieving Families Act, but had proposed several amendments – including exempting medical malpractice cases altogether – which were not agreed on prior to the deadline to sign the legislation. 

What is a wrongful death case?  When someone dies because of someone else’s negligence or malpractice, there are two potential claims.  One is called a survival action which is the claim that belonged to the deceased person and, literally, survives his or her death.  The damages in a survival action are typically the pain and suffering experienced by the decedent prior to their death.  The second is the wrongful death action.  The wrongful death action seeks to recover the financial contribution the deceased person made during their life, which we call pecuniary loss.  This can include not only someone’s actual salary but, for example, your spouse’s household contributions and support.  New York is in the minority of states allowing recovery only for pecuniary loss. 

What is missing?  The ability of a loved one to recover for their emotional distress resulting from the negligent death of their spouse or child, among others.  This is perhaps most glaring in the case of a child.  Young children are not contributing financially to the home and certainly a child suffering prior to their death makes a worst case scenario even more horrific.  But under the current law, in the scenario of a child who dies instantly, a lawsuit would have very little financial value due to the limited damages available.  And when a lawsuit has very little financial value, the time, expense and risk of moving forward can begin to outweigh the benefit. 

Now, some may say, no amount of money or lawsuit would bring back a loved one so why should we care about this?  Well, the civil justice system serves various important purposes in our society, including as a deterrent to unsafe and reckless behavior as well as a means to obtain information about what was done wrong and what can be done differently in the future. 

We also have the ability to recover emotional distress damages in other contexts.  For example, you can recover for your emotional distress if you lose your job, and those damages can be significant.  For those who are worried that there is a risk of gigantic verdicts putting defendants out of business, while it is true that New York does not have a cap on damages, the law does have other mechanisms to keep this in check.  In an employment lawsuit, you have to prove your emotional distress, and to obtain a significant award, you would demonstrate a severity typically supported by medical records. If your proof does not match a jury’s award, it will often be reduced by the Court as excessive. 

We’re not here to say that this Act is perfect, or that no valid areas for improvement were identified.  And we’ll leave it to the Governor and the Legislature to duke it out over when and whether those tweaks should have already taken place.  But we do hope that the addition of this element of damages is achieved sooner rather than later because we know we’re not alone in believing that someone’s life is worth more than just their salary. 

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