Syracuse.com: Latest version of Grieving Families Act on a path to nowhere

By: Michael P. Mezzacappa

The third version of a bill aimed at expanding New York’s compensable damages awarded to bereaved family members was rushed back into the New York state Legislature on Feb. 21.

While the bill has seemingly good intentions, this latest iteration does not take into account any of the good-faith concerns from stakeholders — the same lack of compromise that led Gov. Kathy Hochul to veto its previous version just over a month earlier on Dec. 29, 2023.

With no meaningful updates or changes, this latest rendering of the long-sought Grieving Families Act looks set to fail yet again.

The legislation’s botched execution will likely deal another blow to families seeking damages for grief and anguish caused by a loved one’s death. Strike three is a real disservice to anyone looking for New York to make progress on this issue, since good-faith negotiation and compromise might have yielded the governor’s stamp of approval.

New York is one of only two states that does not compensate for emotional loss in wrongful death lawsuits. Advocates for the Grieving Families Act have legitimate cause to change that, since everyone deserves a comprehensive sense of justice and closure following the death of a loved one.

Instead of seeking reasonable reform of New York’s wrongful death statute, however, they are attempting to completely overhaul the entire system of wrongful death jurisprudence in our state. This could adversely impact nearly all New Yorkers by raising insurance premiums and jacking up costs for a healthcare system that is already unaffordable for so many.

There must be a balance between adequately compensating families and ensuring the sustainability of insurance markets.

Under current law, a deceased person’s potential future income, in addition to medical bills and funeral costs, largely determines the amount family members can recoup in a successful lawsuit. This is already an incredibly convoluted calculation to make in the courtroom, one that largely falls on juries who are often ill-equipped to render such financially complex determinations.

New York pays out more for liability claims than any other state in the country, since it is one of the few states that does not put a cap on the amount of damages that plaintiffs can receive in wrongful death cases. The Grieving Families Act could expand these payments exponentially, saddling payment calculations with the subjective factor of emotional loss.

That alone might be doable, except that this bill would expand the traditional definition of “surviving close family members” to include siblings, parents, grandparents, stepchildren, step-grandchildren, step-grandparents, and any other person standing in loco parentis to the decedent.

Moreover, the proposed legislation would apply retroactively to the arbitrary date of July 1, 2018, regardless of when the lawsuit is filed. This would drastically increase the number of wrongful death claims and filings rushed into courthouses across the state, placing a tremendous burden on a court system already backlogged by existing litigation delayed by the pandemic, not to mention the swell of wrongful death cases resulting from Covid-19. Pending cases would have to be reevaluated to ensure that appropriate reserves are maintained, even though insurers set reserves for those cases long ago.

It all amounts to the kind of pie-in-the-sky thinking that fails to consider downstream consequences. Who’s going to pay for these changes?

This version of the Grieving Families Act could encourage frivolous lawsuits and increase the amount of discovery needed to defend such cases, in addition to raising the attendant legal defense costs, settlement dollars and administration all of this will require.

More significantly, it could result in skyrocketing liability insurance costs. An actuarial analysis by the New York Civil Justice Institute found that if the bill is enacted, insurance liability premiums could increase by $2.2 billion annually. Auto and general liability premiums are projected to increase by 11% as a direct result of this legislation, while medical liability premiums could increase up to 45%.

Driving up the cost of liability insurance sends our already short-staffed physicians to practice in other states. That could mean increased wait times for patients to see their doctors and an overall decline in the quality of our healthcare system.

We might even see a pullback of insurance companies tied to certain healthcare facilities in our state. Much like what’s happened in natural disaster-prone areas of the country, where wildfires, hurricanes and floods have forced insurance companies to jack up rates, restrict coverage or pull out of certain areas altogether, health insurance companies may come to view New York as prohibitively expensive. That, in turn, could narrow consumers’ choices and send healthcare costs soaring.

The Grieving Families Act, while noble in spirit, proposes too much all at once. Change happens incrementally. You cannot completely overhaul a system with this many moving parts overnight.

By failing to seriously consider its potential impacts, and by rushing the bill back into the legislature without further compromise, advocates for this measure are sticking to a doomed path that will keep grieving families in limbo for the foreseeable future.

Michael Mezzacappa is a partner and general counsel with New York-based Coffey Modica LLP.