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Will New York reform its antiquated Wrongful Death Statute where currently the death of a child or stay at home parent is “worthless”?

“Don’t cry,” I whispered to myself. “Lawyers don’t cry,” I said in my head as one renegade tear dripped down my cheek. There I was, trying to hold it all together for my client, Lainie, a young mother who had just lost her four year old son, Jason. As she spoke, she showed me pictures of Jason, beaming with life and vitality, only a few days before his death. Her gut wrenching sobs cut like a knife through my heart.

Lainie, along with her husband, were seeking my services in investigating the death and potential medical malpractice that led to the inconceivable loss of their young son. I advised her that we would start working on this case right away, and that we would seek justice for any medical malpractice that had occurred. I explained the process by which we file lawsuits in medical malpractice cases. I explained the investigation process, the review of medical records, the potential defendants, and the hiring of medical experts. I advised them of the claims we would bring, one for conscious pain and suffering, and one for wrongful death. What I had not told this mother at our initial meeting, who was vividly raw with angst and anger, was that her son’s case, also called a wrongful death case, was practically worthless under New York State Law.
“Don’t cry,” I whispered to myself. “Lawyers don’t cry,” I said in my head as one renegade tear dripped down my cheek. There I was, trying to hold it all together for my client, Lainie, a young mother who had just lost her four year old son, Jason. As she spoke, she showed me pictures of Jason, beaming with life and vitality, only a few days before his death. Her gut wrenching sobs cut like a knife through my heart.

Lainie, along with her husband, were seeking my services in investigating the death and potential medical malpractice that led to the inconceivable loss of their young son. I advised her that we would start working on this case right away, and that we would seek justice for any medical malpractice that had occurred. I explained the process by which we file lawsuits in medical malpractice cases. I explained the investigation process, the review of medical records, the potential defendants, and the hiring of medical experts. I advised them of the claims we would bring, one for conscious pain and suffering, and one for wrongful death. What I had not told this mother at our initial meeting, who was vividly raw with angst and anger, was that her son’s case, also called a wrongful death case, was practically worthless under New York State Law.
That under New York’s wrongful death statue, the value of one’s life was based upon earning potential while alive. This was more than she could handle at that time. There was no way she was going to believe me. I was not going to start explaining this painful consequence of New York law to an already heartbroken family. I decided that I would delay that conversation to a more appropriate time as the discussion about the value of a case is not one I usually have at an initial meeting with a client.

The unmentionable reality that I wished not to speak of that day is New York State’s wrongful death statute. It dates all the way back to 1847 without reform. It was enacted during a very different time in New York life where the family structure consisted of a traditional mother and father, in which men worked for wages and women performed unpaid domestic and agricultural work. In 1847, the law was concerned only with economic loss resulting from wrongful death. As a result, husbands could not recover for the death of their stay at home wives. According to this ancient law, “Where an injury causes the death of a person the damages recoverable for such injury are limited to those accruing before the death and shall not include damages for or by reason of death.” (EPT 11-3.3).

New York’s wrongful death statute is both antiquated and discriminatory, in desperate need of reform. It is unconscionable in today’s society that this law places value on money over life, on one’s earning capacity while alive over their guidance, love and support. Under the current state of the law, the death of a retired grandparent, a stay at home parent or a child are deemed worthless. If the victim was not earning money prior to his or her death, their next of kin is unlikely to recover monetary damages for the death. The law primarily values and benefits high wage earners living in a traditional family structure. For instance, if a husband suffers the loss of his wife who is a high paid plastic surgeon, he will undoubtedly recover millions of dollars for his loss, while the husband of a stay at home mother may have a comparatively small monetary recovery. Obviously, both husbands will feel tremendous loss for their wives, but one will be able to recover monetarily for this loss, while the other’s suffering will go uncompensated.

Countless times in my law practice, when I present the harsh reality of the wrongful death statute to my clients, most are shocked by its insensitivity. They cannot fathom that the death of their elderly parent, for instance, who died due to the negligence of another, would not be worth the millions of dollars they believe it should be. While I try to make the distinction between conscious pain and suffering and wrongful death claims, most clients’ realities are based upon what they have heard or seen on television and from countless commercials touting millions recovered for wrongful death.

In recent months, with the overwhelming amount of deaths caused by Covid-19, new legislation was introduced to reform the Wrongful Death statute. The proposed new law has been appropriately named “The Grieving Families Act.” “This Act seeks to amend the estates, powers and trusts law, in relation to payment and distribution of damages in wrongful death actions.” Under the new statute, a plaintiff may be able to recover for “…grief or anguish caused by the decedent’s death, and for any disorder caused by such grief or anguish.” The wording of the statute also includes recovery for “loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death.” The statute goes on to include recoveries for “loss of nurture, guidance, counsel, advice, training, and education resulting from the decedent’s death.” This type of compensation is currently available in nearly 40 other states other than New York.

The new legislation will also expand who can recover for wrongful death to not just next of kin, but will include “surviving close family members, which may include, but are not limited to, spouse or domestic partner, issue, parents, grandparents, step-parents and siblings.” This is a drastic change from the old draconian law.

The new legislation has an expansive reach in what can be considered as part of the loss. For the first time in two decades, a jury may consider things like a mother’s love or a stepfather’s nurture and guidance in deciding how much money to award a child. The education a grandchild may have received from a deceased grandfather will be considered to have value under the law. In the loss of a child to a mother or father, a jury may consider the anguish felt, the pain and suffering of the parent and any mental disorders, such as anxiety or depression that may ensue from the loss.

This takes me back to Lainie, the mother in my office desperate for answers and for justice. After years of litigation, we were entering settlement discussions with the defendants. I brought Lainie and her husband into my office to discuss the value of the case. Essentially, we sat down to discuss the value of Jason’s life and the other factors that go into deciding what a case is worth. How was I going to put a number on her son’s life without completely letting her down, I thought? How was I going to explain to her that the law did not value a child’s life like it did a wage earner? How was life going to even translate to dollars and cents? This is the complex job we have as lawyers, equating money with life or pain and suffering. Some say it is an art, others say it is a science. For me, it was an unjust conclusion and I was going to have to tell her.

While I explained that there would be an award for Jason’s pain and suffering, the monetary recovery for his wrongful death would be minimal. She was shocked, and disappointed. There was disbelief. Needless to say, New York State law had let her down. The money she was going receive would never reflect the intense pain and deep wounds that would never heal; no amount would.

Moving forward, the introduction of the Grieving Families Act in the legislature fills me with hope. It will bring equity under the law so desperately needed by today’s grieving families. I pray that I never again have to tell a client who has suffered the painful loss of a loved one that their loss is worthless in the eyes of the law. That I can bring about justice in the form of fair compensation, not just for monetary losses, but for mental anguish, hurt, pain and suffering that results from the wrongful death of a loved one due to someone else’s negligence.

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