Remedies

NY Wrongful death , collateral sources, liens, interest

Prof. George W. Conk
gconk@law.fordham.edu
Room 8-122
212-636-7446

Elected Member, American Law Institute

Adjunct Professor of Law & Senior Fellow
Stein Center for Law & Ethics

Damages - wrongful death, collateral

sources, liens, etc.

The Wrongful Death and

Survival Actions
New York statutes

Damages - wrongful death, collateral

sources, liens, etc.

NY CLS EPTL 11-3.2 (2008)

Action for injury to person or property survives
despite death of person in whose favor or
against whom cause of action existed

(a) Action against personal representative

for injury to person or property.
(1) No cause of action for injury to
person or property is lost because of
the death of the person liable for the
injury.
Damages - wrongful death, collateral
sources, liens, etc.

NY CLS EPTL 11-3.2 (2008)

Action for injury to person or property survives
despite death of person in whose favor or
against whom cause of action existed

(b) Action by personal representative for

injury to person or property.
No cause of action for injury to person or
property is lost because of the death of
the person in whose favor the cause of
action existed.
Damages - wrongful death, collateral
sources, liens, etc.

Elements for which recovery is allowed

in the survival action

Losses end at death

Wages/earnings/profits - doa to dod

Medical care

Property damage

Lifetime Pain, suffering, disability,

impairment

Prejudgment interest

Damages - wrongful death, collateral

sources, liens, etc.

NY CLS EPTL 5-4.3

The Wrongful Death Action

Rights of Members of Family Resulting from

Wrongful Act, Neglect or Default Causing Death
of Decedent

(a) The damages awarded to the plaintiff

may be such sum as the jury orthe
court deems to be fair and just
compensation for the pecuniary injuries
resulting from the decedent's death to the
persons for whose benefit the action is
brought.
Damages - wrongful death, collateral
sources, liens, etc.

Allowable Elements of damage

The Wrongful Death Action

Medical expenses
Reasonable funeral expenses paid or
payable by the estate or distributees
Loss of financial contributions
Lost services
Loss of parental care, advice, and
guidance
Loss of inheritance
Damages - wrongful death, collateral
sources, liens, etc.

Types of lost services compensable

Household maintenance activities

- house cleaning, meal preparation, clothing
care, home repairs; child care; health care;
household finance; and chauffeur services

Value of spouses services

Measure of damage: the cost of employing a
third person for household service
Loss of parental* care, advice and
guidance.
- intellectual, moral, religious, physical training
Damages - wrongful death, collateral
sources, liens, etc.

Elements for which recovery is

Denied in NY wrongful death

Pain, suffering of decedent

Grief
Loss of consortium
Emotional injuries suffered by the
survivors *
No enhancement of loss of services
damages due to character of provider
Damages - wrongful death, collateral
sources, liens, etc.

NY CLS EPTL 5-4.3

The Wrongful Death Action

Interest upon the principal sum

recovered by the plaintiff from the
date of the decedent's death shall be
added to and be a part of the total
sum awarded.
Punitive damages

Damages - wrongful death, collateral

sources, liens, etc.

10

Statutory erosion
NY CLS CPLR 4545

(a) Action for medical , dental or podiatric

malpractice
In any action for medicalmalpractice where the
plaintiff seeks to recover for the cost of medical
care loss of earnings or other economic loss,
evidence shall be admissible
to establish that any such past or future cost or
expense was or will, with reasonable certainty,
be replaced or indemnified, in whole or in part,
from any collateral source
Damages - wrongful death, collateral
sources, liens, etc.

11

NY CLS EPTL 5-4.3

Net damage in med mal cases

(c)(i) In any action in which the

wrongful conduct is medical
malpractice or dental malpractice,
evidence shall be admissible to
establish the federal, state and local
personal income taxes which the
decedent would have been obligated
by law to pay.
Damages - wrongful death, collateral
sources, liens, etc.

12

Collateral Sources
Insurance, liens, etc.

Damages - wrongful death, collateral

sources, liens, etc.

13

The Collateral Source Rule

Evidence of collateral sources of

compensation available to the
plaintiff is not admissible by the
defendant to reduce the amount of
damages recoverable

Damages - wrongful death, collateral

sources, liens, etc.

14

Statutory erosion
NY CLS CPLR 4545

insurance (except for life insurance)

social security (except retirement benefits)
workers' compensation or employee
benefit programs
(except such collateral sources entitled by
law to liens against any recovery of the
plaintiff)

Damages - wrongful death, collateral

sources, liens, etc.

15

Liens

Workers compensation

Funded benefit plans governed by

ERISA

Medicare

Medicaid
Damages - wrongful death, collateral
sources, liens, etc.

16

Other liens

Welfare

Public defender

Child support

letters of protection

Damages - wrongful death, collateral

sources, liens, etc.

17

Statutory erosion
NY CLS CPLR 4545

Operation
The Court shall reduce the amount of
the award by such finding, minus an
amount equal to the premiums paid
by the plaintiff for such benefits for
the two-year period immediately
preceding the accrual of such action
and minus an amount equal to the
projected future cost to the plaintiff
of maintaining such benefits.
Damages - wrongful death, collateral
sources, liens, etc.

18

Statutory erosion
NY CLS CPLR 4545

(b) Certain actions against a public

employer for personal injury and
wrongful death.
evidence shall be admissible for
consideration by the court to establish
that any such cost or expense was
replaced or indemnified, in whole or in
part, from a collateral source provided or
paid for, in whole or in part, by the public
employer
Damages - wrongful death, collateral
sources, liens, etc.

19

Statutory erosion
NY CLS CPLR 4545
including but not limited to
paid sick leave
medical benefits
death benefits
dependent benefits
disability retirement allowance
social security (except retirement benefits)
but shall not include those collateral
sources entitled by law to liens against
any recovery of the plaintiff.
Damages - wrongful death, collateral
sources, liens, etc.

20

Statutory erosion
NY CLS CPLR 4545

(c) Actions for personal injury, injury

to property or wrongful death.
In any action brought to recover
damages evidence shall be admissible
for consideration by the court to establish
that any such past or future cost or
expense was or will, with reasonable
certainty, be replaced or indemnified, in
whole or in part, from any collateral
source, etc.
Damages - wrongful death, collateral
sources, liens, etc.

21

Spousal obligation The Necessaries

Doctrine

MBA v. Steiner, 588 N.Y.S.2d 890 (1992)

a spouse who has incurred a debt for necessary
goods or medical treatment is primarily liable for
that debt
a creditor seeking to recover for necessaries
must demonstrate that necessaries were
furnished on the nondebtor spouse's credit
responsibility to pay for a spouse's debts must
remain limited by the nondebtor spouse's ability
to do so
Damages - wrongful death, collateral
sources, liens, etc.

22

NY CLS CPLR 5001

Interest

NY prejudgment interest
Not in personal injury
except in wrongful death actions
Allowed in:
breach of contract
Actions re interfering with title to, or
possession or enjoyment of, property
Discretionary in equity actions
Damages - wrongful death, collateral
sources, liens, etc.

23

NY CLS CPLR 5002. Interest from

verdict, report or decision to judgment

Interest shall be recovered upon the total

sum awarded, including interest to verdict,
report or decision, in any action, from the
date the [liability] verdict was rendered or
the report or decision was made to the
date of entry of final judgment.
The amount of interest shall be computed
by the clerk of the court and included in
the judgment.
Damages - wrongful death, collateral
sources, liens, etc.

24

NY CLS CPLR 5003

Interest

Every money judgment shall bear interest

from the date of its entry. Every order
directing the payment of money which has
been docketed as a judgment shall bear
interest from the date of such docketing.
Damages - wrongful death, collateral
sources, liens, etc.

25

Periodic Payments
In Medical Malpractice Cases

Damages - wrongful death, collateral

sources, liens, etc.

26

Article 50-a. Periodic Payment of Judgments in

Medical and Dental Malpractice Actions
NY CLS CPLR 5031
Basic rule: lump sum awards of damages
in personal injury and wrongful death
claims
Exceptions:
Med mal recoveries over $500,000
- 35% or $500k in a lump sum
- balance over 8 years
Damages - wrongful death, collateral
sources, liens, etc.

27

Periodic payments

(d) The findings of future economic and

pecuniary damages except in wrongful death
actions, shall be used to determine a stream of
payments for each such item of damages by
applying
(i) the growth rate, to the (ii) annual amount in
current dollars, for the (iii) period of years, all of
such items as determined by the finder of fact
for each such item of damages.
Damages - wrongful death, collateral
sources, liens, etc.

28

Present value discount

(e) US Treasury rate for the ten-year United

States Treasury Bond on the date of the verdict.
If over 20 years the discount rate to be used in
determining the present value shall be
calculated by averaging, on an annual basis, the
rate in effect for the ten-year United States
Treasury Bond on the date of the verdict for the
first twenty years and two percentage points
above the rate in effect for the ten-year United
States Treasury Bond on the date of the verdict
for the years after twenty years.
Damages - wrongful death, collateral
sources, liens, etc.

29