Crain’s New York Business: Opposition against wrongful death legislation mounts before bill hits Hochul’s desk

By: Jacqueline Neber

Physician and business groups have redoubled their efforts to convince Gov. Kathy Hochul to veto the Grieving Families Act as legislators wait to deliver the bill to the governor.

The act aims to expand the damages recoverable in wrongful death lawsuits so families can be compensated for their emotional anguish as opposed to only damages that can be quantified as monetary amounts. Hochul vetoed a previous version of the bill this past winter because she believed lawmakers hadn’t considered its potential impact on the state economy. Insurance and medical providers were similarly concerned the bill would force employers to pay more for employees’ health insurance, cause doctors to provide more preemptive care and drive up costs.

In response, state Sen. Brad Hoylman-Sigal and Assemblywoman Helene Weinstein reintroduced the bill in May with new provisions that address the governor’s concerns. Hoylman-Sigal told Crain’s that the amended legislation clarifies which family members are able to recover damages, limits the types of damages eligible for recovery and reduces the original extension of the statute of limitations. In June, the bill passed both houses.

Despite the amendments, advocacy groups remain wary and have recently come together to voice their opposition. The Chinatown-based Coalition of Asian-American Independent Physician Associations, small business owners, medical professionals and community members called on Hochul to veto the legislation last week.

Peggy Sheng, CAIPA’s chief operating officer, said she is concerned the act would increase independent physicians’ financial burdens and questioned how emotional pain would translate into compensation. She noted that New York already has a high number of medical malpractice claims filed each year, and health care professionals are already under high amounts of stress.

While the bill is well-intentioned for families, she said, its impact could drive independent physicians out of New York because doctors are less likely to practice in a state where many malpractice lawsuits are filed–and small practices don’t have the resources of large health systems to deal with cases. If doctors leave, vulnerable New Yorkers including immigrant communities could lose access to health care, Sheng said.

Chelsea Lemon, the director of government affairs at the Business Council of New York State in Albany, added that if the bill is enacted health care premiums could “skyrocket,” and those costs could be passed to businesses and consumers throughout the state. Liability

costs that businesses shoulder, including general and automotive insurance, are all intertwined and could all increase significantly, she said.

Her concerns echo issues dissenters raised about the original version of the bill last year. Furthermore, the new version of the legislation doesn’t address Hochul’s points, Lemon said.

“As the governor has noted in her veto memo last year, there was no evaluation of the immense impact that this will have on our economy, small businesses, local governments and our state's health care system,” Lemon said. “And this year's version doesn't evaluate the cost or include any economic analysis of this either.”

Meanwhile, Hoylman-Sigal called the bill’s opposition from insurer groups, hospitals and Wall Street “static,” saying dissenters are repeating the same arguments from different pieces of civil justice-oriented legislation.

“I think that there's a lot of Chicken Little in the claim that the sky will fall should we reform a statute that is over 175 years old,” he said, adding that other states have reformed their wrongful death laws without seeing a large increase in premiums.

The legislation would be vital for families who have lost ones to malpractice, he said, because compensating for emotional anguish would reduce disparities that New York’s current statute perpetuates.

When wrongful death is only compensated based on economic damages, Hoylman-Sigal continued, that relies on “inherently discriminatory” societal factors that work against older and younger New Yorkers, those who are less educated, those with disabilities and people of color.

“That is inherently unfair and places the value of lives of some New Yorkers ahead of others by statute. I think it's an outrage,” he said.

As the legislature waits for Hochul to call the bill up to her desk, Hoylman-Sigal added that the Senate is open to negotiations if the governor has specific changes for the amended bill. It’s too early to predict whether Hochul will veto the Grieving Families Act again, he said–but if she does, he will consider reintroducing another revised version.