January 4th, 2024

Hochul Vetoes Grieving Families Act Again

I’ve written before about the Grieving Families Act, a badly needed update to New York’s wrongful death statute that dates to 1847. My first post was in 2017, but a version of the bill has bounced around Albany for 30 years.

By way of brief background, for those too lazy to hit the link above, in a wrongful death case in New York there is a claim for monetary loss – be it lost wages or even the economic value of cooking and cleaning that one household member might perform.

But there is little monetary claim over the loss of a child, or a retired parent, or a disabled family member. If you are rich, the pecuniary claim may be large, but if you are not, then you may be as we lawyers like to say, shit out of luck. This restriction obviously has a disproportionate effect on those with low incomes.

Enter, the Legislature, which in 2022 finally passed a bill after long efforts that allowed for family members to make claims for grief, as can now be done in 48 out of 49 other states. Gov. Kathy Hochul should have signed that bill, passed by large majorities of both legislative houses. But she vetoed it.

So last year the Legislature tried again, and passed a more limited bill (restricting the definition of family members), again with overwhelming support. The new bill offered several modifications to win the Governor’s support:

“These narrowed the pool of family members eligible for damages, reduced the statute of limitations from three-and-a-half years to three years, removed a provision that would have covered disorders resulting from grief and limited retroactivity only to incidents that occurred on or after July 1, 2018.”

But on December 29th, she vetoed that one also.

An article in City & State New York, gives the background of that veto: Hochul wanted to lard it with so many poison pills it would be completely neutered:

In her counter-proposal, a copy of which was shared with City & State, Hochul suggested limiting the law only to deaths of New Yorkers 18 and under, completely removing retroactivity for existing lawsuits, lowering the statute of limitations from three years to two (which is the current law), rejecting any expansion of family members eligible for damages under the statute and setting a sunset date of three years after the law took effect.

These restrictions simply gut the whole point of the bill.

Her complaint that the bill would wreak havoc on businesses is belied by the evidence. As an op-ed in Albany’s Times Union notes:

In 2019, plaintiffs filed approximately 77,427 tort cases in New York. Of those, only 126 cases involved claims for wrongful death — a microscopic .15% of all cases — according to state Office of Court Administration data. This statistic exposes the absurdity of any prediction that the act would cause even a 1% increase in losses.

Since both the Senate and the Assembly are both currently governed by the Democrats, and the Governor is a Democrat, they are loathe to override her veto. Making enemies within one’s own party is not necessarily the secret sauce of success on a wide range of other issues that confront legislators and demand negotiation. As per NY Assembly leader Carl Heastie:

“Even though he is disappointed with the governor’s vetoes, Heastie is not ready to discuss veto overrides.

“[Veto overrides] are always…nuclear options and you would hope to never get to that point,” Heastie said.

He pointed to the Legislature’s historic cooperation with Hochul over the past few years.”

On the other hand, given Hochul’s extreme position that she will only a wholly ineffective bill, then override is the only alternative.

January 31st, 2023

Hochul Chooses Profits Over People; Vetos Grieving Families Act

The bill had sailed through New York’s Assembly for three decades. Then in June 2022, it finally passed the state Senate 57-6.

Late last night, seven months after it finally passed, Gov. Kathy Hochul vetoed the bill. There wasn’t enough time to study it, she said.

Seriously. That was an excuse.

That bill is the Grieving Families Act, an update to New York’s first-in-the-nation wrongful death law, in 1847.

The law, as it currently stands — and has stood since the time that southern states still allowed people to own other humans and work them to death — gave the immediate families of those killed by negligence the right for recompense for pecuniary loss. Essentially, the lost wages of the family breadwinner.

The bill Hochul vetoed, which I wrote about in 2017 and again in July 2022 after it finally passed, is an update to bring New York into line with 48 other states, including the deep red south. It would permit recompense for grief to close family members in addition to the lost wages.

Now no one would ever pretend that money is a perfect solution to the lost life of a loved one, as nothing in this world would be. But we use money as a yardstick to measure accountability as it is the best tool we have. And I know from firsthand experience that the overwhelming majority of New Yorkers agree with this as I, and every other personal injury attorney, ask this as a standard question during jury selection. Rare is the person that says no, even though they know that this would be the ticket to getting bounced from the jury panel.

In addition, the Grieving Families Act extends the statute of limitations from its current dismal two years to three and one-half years.

Why is two years dismal? Aside from trying to recover from the grief, a family must also petition the Surrogate’s Court for letters of administration. Because without letters, you don’t have a proper party under our Estates Powers and Trusts law to bring suit. No standing.

Think that’s easy? The two years is not measured from the time letters are issued by the Surrogate, but from death. I currently have a petition pending in one county for 16 months. 16 months! Do the math.

Hochul tried to claim that she wanted a reasonable bill. She said so in an op-ed in yesterday’s Daily News. The Governor, and it dismays me to use this language as I voted for her, is full of shit.

Allow me to deconstruct the lousy excuses — bearing in mind that when one makes bad arguments it means that they don’t have good ones:

First, she claimed, as I opened in this piece, that there wasn’t enough time:

This bill passed at the very end of the legislative session; the bill was approved in committee and voted on by both the Assembly and Senate, in full, on the very same day. What was missing was a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the state’s complex health care system.

Assemblywoman Helene Weinstein carried this bill for 29 years. Then there was another seven months after Senate approval. So this was not an honest excuse. As we say in other contexts, res ipsa loquitur. The thing speaks for itself. Or in this case, the calendar.

Hochul pretended to offer a compromise, which wasn’t a compromise at all, but completely eviscerated the bill. She said it should only apply to those under 18.

So who does this exclude? Well, everyone that is retired. Because families don’t feel grief over the negligent death of a retired parent?

It excludes the families of those that are unemployed or underemployed, which affects minority and immigrant communities more than white ones. Do they not feel grief over loss due to negligence?

It excludes stay at home, child rearing parents. Does the child of such a victim not feel grief? The spouse and the parents?

It excludes — get this — victims of medical malpractice. Do these families not feel grief when someone dies from medical negligence? Gosh, I wonder how that snuck into her “compromise?”

Hochul was not tinkering around the edges of the bill. She was completely neutering it.

So who was left? Kids killed in auto accidents? Is that about it? And the vast majority of those won’t have sufficient insurance anyway, with insurance policies ranging from an unconscionable 25K to 100K?

And more excuses: She claims that she needs ” time to look at data and grapple with complex issues, such as our state’s unique constitutional prohibition against limits on damages.“

Well, Governor, we don’t have a “unique prohibition against limits on damages.” That is utter nonsense. New York has had limits on damages since at least 1812: See: How New York Caps Personal Injury Damages. It’s kinda on point.

But this excuse may be the one that really takes the cake: “It is reasonable to think that the legislation as drafted will drive up already-high health insurance premiums;

Well, there’s no easy way to say this, so here goes: Dead people don’t drive up healthcare costs. Sick people do. The insurance industry benefits when sick people die as healthcare payments stop. The insurance industry, oddly enough, doesn’t like to talk about that.

So yeah, I call bullshit on the Governor. Her attempts to claim she cares about the issue are empty, and she will embarrass herself by further repeating it.

It can never be said enough times: When people make bad arguments it means they don’t have good ones.

July 8th, 2022

Gov. Hochul Should Sign The Grieving Families Act

Back in 2017 I wrote the piece below on New York’s wrongful death law, and updated it with some additional links in 2021. It’s about New York’s ancient law, which, once upon a time, led the nation in giving rights to families whose family breadwinner had been killed by negligence.

But what once was, is no more. Now we trail the nation, for the reasons set forth below.

The Grieving Families Act has now, finally, passed the legislature. It was an act that has been percolating for as long as I have been practicing law. (See also Daily News Op-Ed: What Gov. Hochul owes grieving families, by Assemblymen Ron Kim of Queens).

Gov. Hochul should sign this very long overdue measure.—-

New York’s Grieving Families

[Updated May 11, 2021 with new legislative links at the bottom]

Once upon a time — like in 1847 — New York was a progressive state. We had, I believe, the first ever wrongful death statute for the benefit of families whose bread-winner was killed due the negligence of others.

And back then that was progressive.

The problem is that we have stagnated. This first-ever law has never been updated.

Essentially, if a family’s non-breadwinner is killed by the negligence of others, that person’s life — in the eyes of New York’s law — is worthless. Because there is no “economic loss” associated with the death. Mostly this means a child or retiree. Neither an infant, nor college student nor retired parent is likely to be providing an “economic” benefit in New York.

The grief of family members is, in New York, completely non-compensable.

Just as I addressed Lavern’s Law last week — the proposed legislation that measures the medical malpractice statute of limitations from the time the malpractice could reasonably have been discovered instead of when it happened — I address different legislation today.

If I can do my little part to help push New York into the 21st century I’ll be happy.

There is really no justification for telling families of the deceased that the court house doors are closed to them for their grief. Many of our sister states have such legislation. When out out-of-state lawyers call me to discuss potential wrongful death matters in New York, they are stunned to hear of the antiquated state of our civil justice system.

For many people, the courts are the only outlet for justice. We don’t encourage vigilantism, by any means, and a working, viable justice system is part of what makes a society function in a semi-civil fashion. And having this outlet oft-times provides a small means of holding people or companies accountable so that the same thing doesn’t happen to someone else’s kid, or parent.

2021 updates:

In the Senate the bill is S. 4006.

In the Assembly it is A. 5612.

The legislature is in session now and considering the bill.

If you don’t know your legislators, you can find them here by simply popping in your address.

Give a call to voice your support. It takes only a few moments.

April 29th, 2021

Stupid Lawyer Tricks – Insurrection Edition

Screen grab from NBC News a moment before Babbitt was shot

Ashli Babbitt was shot dead on January 6th while crashing through the Capitol in an attempt to stop electoral votes from being counted. Now her Estate wants to sue the Capitol Police and the (as yet unnamed) officer for wrongful death.

This is, perhaps, one of the dumber ideas I have heard. Sue the very people charged with defending the republic while you are part of a crowd trying to violently overthrow it? Seriously?

I get phone calls with some frequency about bad cases. I wrote several years ago that the most important word for a personal injury lawyer is “no.” That hasn’t changed.

And bringing a wrongful death suit for the passing of a child — regardless of the context — is fraught with more than the usual emotion. The worst are those that come in the context of suicide, and the question presented is why a doctor did not render the proper treatment in the days/weeks/months before.

And the one thing that must be absolutely, 100% crystal clear is this: The client will never be happy. Never. Ever. It is impossible if a child was lost.

And now we add in a case that can’t possibly be won before a court or jury. Will the lawyers be doing it solely for the publicity? I’ve probably known hundreds of personal injury lawyers here in New York. I can’t think of one that would bring such a suit.

Worse yet for the family is that the Babbit Estate may face a counterclaim for intentional infliction of emotional distress if the officer who shot her has suffered as a result. Few would be surprised if he had post-traumatic stress syndrome.

Such cases are very difficult to win because of the exceptionally high bar that needs to be cleared to get there. But the (New York) rule is that it must be:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement [Second] of Torts § 46 [1] [1965]).”

In fact, as of 1993, the standard was so high that the Court of Appeals wrote (Howell v. NY Post) “of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous.”

The Court of Appeals in NY wrote that “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Assuming the same standard applies wherever suit ends up being brought, would a violent insurrection satisfy that?

The Capitol Police will never settle. If the suit survives a motion to dismiss or motion for summary judgment because of disputed facts, they will lose at trial.

This can only end badly for the family of Ashli Babbitt. There is no other possible ending.

And the Estate (to the extent it has any assets) could be on the hook for damages to the officer who shot her. Just because a family wants to sue does not mean a lawyer should enable such destructive conduct.

January 25th, 2018

Doctor Hit for Punitive Damages After Destroying Records in Child’s Death

Six-year-old Claudialee Gomez Nicanor died. And when her family’s lawyer asked the child’s doctor for her medical records, she destroyed the originals. That’s a problem.

Last week in a case of first impression in New York, our Appellate Division (Second Department) upheld an award of punitive damages in a medical malpractice case — not for the conduct that led to the death, but rather, for the effort to evade liability.

Little Chaudialee had Type 1 Diabetes and died from diabetic ketoacidosis, which results when the body can’t produce enough insulin. (It is Type 2 diabetes that’s often related to excess weight.)

The underlying medical malpractice case dealt with Dr. Arlene B. Mercado‘s failure to diagnose and treat the diabetes. The doctor is a pediatric endocrinologist and the child had arrived in her office via her pediatrician.

Mercado saw Claudialee three times, October 31, 2009, November 14, 2009, and December 12, 2009. Meanwhile, the pediatrician saw Claudialee in late November 2009, and on January 9, 2010. But:

“On January 21, 2010, Claudialee returned home from school complaining that she was tired and did not feel well, and brought with her a note from the school nurse describing her symptoms. The child vomited that evening and said that she had a stomach ache. The next day, after having tried, unsuccessfully, to have Claudialee seen by Cabatic, the child’s mother took Claudialee to a hospital. Claudialee remained hospitalized until her death on January 24, 2010.”

After the child died, and after the lawyers asked for the records, the good doctor thought it would be a great idea to type up the scribbled notes she originally made and destroy the originals for the November and December visits.

The problem is that on the last visit to Mercado on December 12th, the family was told to bring her back on February 13th. And they had the appointment card showing it.

The typed notes, however, claimed something else: That the child was to come back in just four weeks (before the child was ultimately hospitalized). Those are the same notes that were typed up after the child had died and after the lawyers asked for the records:

“Q. Now, you told us that you created the typed written part for the Halloween, the 10/31 visit after you got the letter from my office, did you do all three of them at the same time?

“A. Yes.

“Q. So this one was done without the help of any squiggly notes; is that right?

“A. No.

“Q. No?

“THE COURT: You had notes?

“THE WITNESS: I have like piece of paper, but after typing—

“THE COURT: Where is it[?]

“THE WITNESS:—I throw them out. After typing I will throw them out.

“THE COURT: Four months later you throw them out?

“THE WITNESS: Yes.”

The doctor also gave conflicting claims as to when she typed up the first set of notes, which was important because the typed version included information not reflected in the handwritten record of that visit.

The underlying malpractice claim was that the doctor committed malpractice by “not teaching the child’s family about symptoms of diabetes—such as weight loss, tiredness, lightheadedness, excessive thirst, and excessive urination—and by not recommending that Claudialee’s family perform home testing to measure the child’s blood sugar and ketones.”

The doctor was also faulted for assuming that the child was developing type 2 diabetes and not even considering that the child was developing type 1 diabetes.

The jury found that Mercado was negligent, that the negligence caused injury and death, and awarded $400,000 in pain and suffering and $100,000 in monetary loss. (New York is one of only a few states that does not allow an award to grieving families for the loss of a family member.)

But this was the kicker: $7.5M in punitive damages. While that award was reduced by the trial court to $1.2M, and further reduced by the Appellate Division to $500K, it was the very issue of punitive damages for the destruction of evidence in order to evade liability that lit up the decision.

The court was firm (and unanimous) in stating — and this is the entire point of this post — that punitive damages serve to deter the wrongful conduct of destroying records to evade liability.

[W]e now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct.

And the fact that there might be also be disciplinary action should not deter a court from submitting this to the jury. As the court noted:

However, the possibility of other consequences, such as professional disciplinary action or spoliation sanctions, should not preclude medical professionals from being subject to punitive damages for altering or destroying medical records in an effort to evade potential medical malpractice liability. … the present case illustrates that the availability of disciplinary proceedings is not sufficient to protect plaintiffs from such conduct, since Mercado was clearly not deterred by the possibility of such disciplinary action.

Finally, the court rejected the argument that there was no damage from the destruction of the records, since the plaintiff was able to prevail despite it. In other words, the defendant argued that there should be no penalty for her action. The court was not amused at this request for immunity from wrongful conduct:

We also reject Mercado’s contention that punitive damages cannot be recovered because her destruction of original records did not prevent the plaintiff from successfully prosecuting this action. The fact that the plaintiff was able to prove the medical malpractice cause of action against Mercado, despite Mercado’s destruction of original records, should not insulate Mercado from liability for punitive damages. Undesirable results likely would flow from a conclusion that punitive damages cannot be awarded for the destruction of medical records in an effort to evade liability where a plaintiff is able to establish liability nonetheless; specifically, medical professionals fearing malpractice liability might feel emboldened to alter or destroy medical records, knowing that they will face no added liability in tort. Indeed, it has been observed that “[i]f the act of altering and destroying records to avoid liability is to be tolerated in our society, we can think of no better way to encourage it than to hold that punitive damages are not available” in such circumstances.”

Going forward, this case won’t be limited to medical malpractice cases. I foresee this case being used and cited in any kind of case dealing with spoliation of evidence. For such cases all deal with the same concept of punishing a party for trying to evade liability by destroying evidence.

While one tool in the judge’s toolbox is simply to strike the answer of a defendant for having engaged in such practices, that merely puts plaintiffs where they otherwise would have been anyway had the malfeasance not taken place. There was no downside. Now there is.

The case is Gomez v. Cabatic

See follow-up (1/26/18): A NY Court’s Thin Reasoning on Punitive Damages