MD Linx: New York governor vetoes bill expanding wrongful death lawsuits, but the bill may still have life

By: Lisa Marie Basile

Key Takeaways

• New York Governor Kathy Hochul vetoed The Grieving Families Act (Senate Bill S74A), which would have amended who, when, and how people and families can sue physicians for wrongful death. 

• The bill could have led to consequences, including expensive suits that would impact physicians and hospitals.

• Some lawyers do believe that updating New York state laws around wrongful death is necessary, however, to protect families.

Earlier this year, New York Governor Kathy Hochul vetoed The Grieving Families Act (Senate Bill S74A), which is a bill designed to “amend the estates, powers, and trusts law, in relation to the payment and distribution of damages in wrongful death actions.” It had been in the legislative pipeline for years.[1] 

The proposed bill would have updated a few key items around New York’s wrongful death legislation.

Mainly, it would expand on who could sue for wrongful death, extend the time permitted to bring wrongful death actions to suit (from two to three and a half years), and it would permit recovery of damages due to emotional loss (rather than monetary loss only) in the case of a tortfeasor (​​a person who commits a civil wrong, either intentionally or through negligence) being the cause of death.[2] 

The proposed bill would have “permit[ed] the families of wrongful death victims to recover compensation for their emotional anguish.”[3] Many other states do allow family members to sue for emotional damages, although every state has its own variations on wrongful death laws.[4] Attorney Richard Howe, an AV preeminent rate personal injury lawyer explains the key differences in this amendment to MDLinx: "The law in New York, as it stands, allows the family of someone killed through medical negligence to get damages for the economic impact of the death—such as the victim’s lost wages, the funeral and burial costs, and end-of-life medical care,” he says.

“But they cannot get damages for the emotional distress, mental anguish, lost companionship, or most other ‘non-economic’ damages for the family,” Howe says.

Who would this proposed bill impact or benefit? 

The vetoed bill, Howe says, would lead to mixed consequences. For one, “[It] would have allowed for these additional damages to be paid to the family. Doctors and hospitals argue that that would have been too expensive for them and their insurance companies, as it would have meant higher damages in medical malpractice wrongful death cases,” he says. However, Howe, adds, “Victims counter by saying that they would have been entitled to damages they deserve.”

The proposed bill also sought to expand the definition of family—calling for flexibility around providing solace to nontraditional family setups as well.

According to Dennis E. Sawan, a senior trial lawyer at the Nick Schnyder Law Firm in Atlanta, GA the bill would have been updated with good reason: “Restrictive standing laws that, for example, allow only a surviving spouse or blood relative to maintain a wrongful death suit, ignore the practical reality that many less conventional members of a family may also be harmed because of a medical error,” he says.

For example, this would mean fiances, domestic partners, stepparents, siblings, grandparents, and others could sue. That said, this bill would have impacted physicians greatly, as New York state—out of all 50 states—had the highest number of medical malpractice lawsuits between the years 2012 and 2022.[5]

"While most, if not all, healthcare providers agree compensation is appropriate for victims of medical mistakes or complications associated with a deviation from the standard of care, relaxing medical malpractice criteria and increasing awards will likely result in increased healthcare costs to patients and healthcare shortages in some geographic areas," Scott Cunningham M.D. Ph.D. tells MDlinx.

Medical malpractice suits aren’t a rare occurrence. According to Studies in Health Technology and Informatics, medical errors are a leading cause of death, causing an estimated 251,000 deaths annually in the United States.[6] In fact, half of all American physicians 55 and older report having been sued, with claims leading to an average of $30,000 in defense costs for physicians.[7]

Hochul mentioned these possible ramifications in an op-ed she penned:[8]

“Experts have highlighted concerns that the unintended consequences of this far-reaching, expansive legislation would be significant. It is reasonable to think that the legislation as drafted will drive up already-high health insurance premiums, adding significant costs for many sectors of our economy, particularly hospitals that are still recovering from the pandemic and struggling to stay afloat — including public hospitals that serve disadvantaged communities."

"This is a question that would benefit from careful analysis before, not after, passing sweeping legislation….What was missing [from the Bill] 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.”

Even though the bill was vetoed, its supporters plan to keep fighting for some version of the expanded bill. Certainly, some lawyers do see a benefit to this sort of update. According to Nick Anderson, personal injury attorney and partner at Stawicki, Anderson, & Sinclair based in Sacramento, CA, “Bills like these are important because they allow people and companies to be held liable and they also act as a deterrent to bad conduct.”

Regardless of whether or not some version of the bill eventually passes, Anderson has a suggestion for physicians hoping to avoid suits: “It’s important doctors make sure they explain all known risks of a procedure and document that they explained these risks. That way, should something come up, they have this behind them,” he says.