Times Union: Editorial: What's the price of grief?

By: Times Union Editorial Board

New York law governing awards in wrongful death lawsuits is woefully out of date. But pending legislation to modernize it goes too far in turning what's now a cold calculation into an unpredictable free-for-all.

The current law, dating back to before the Civil War, allows courts to award damages only for economic losses in cases of a wrongful death. So survivors might be entitled to hospital and other medical costs, funeral expenses, and potential loss of income, calculated over the victim's working life. But they can't be compensated for the pain and suffering of losing a loved one.

Consequently, what the state has is a system that treats some lives as worth more than others, simply because one victim had a better job and higher earning potential than another. It's especially unfair — and insult, really — to children, senior citizens, women and people of color, who often have either little or no income, or less likelihood of earning significant amounts of money in the future.

According to the New York Public Interest Research group, 48 states allow for noneconomic damages to be awarded in wrongful death suits, including at least 18 that specifically allow consideration of anguish and grief. Some New York lawmakers have been trying for more than 20 years to allow for emotional damage awards here, too, but bills routinely died in committee – until now.

The Grieving Families Act, sponsored by Sen. Brad Hoylman, D-Manhattan, and Assemblywoman Helene Weinstein, D-Brooklyn, would add grief, anguish, "loss of love, society, protection, comfort, companionship, and consortium," and "loss of nurture, guidance, counsel, advice, training, and education," and disorders caused by a person's death to the harm for which damages may be awarded.

The bill would also update the law to allow cases to be brought on behalf of domestic partners. And it would extend the statute of limitations from two years to three and a half years. 

We don't disagree with the underlying intent. There is something fundamentally wrong with a system that values a human life not much differently than a car or a house. It may make sense to not complicate the legal or insurance systems by trying to account for how much someone loved their Mercedes or misses their Kia. But loss of a loved one is a far more complicated thing. And to have them taken from a family unnecessarily through a careless error or egregious negligence undoubtedly magnifies the pain — and should figure into the legal liability.

However, opponents of the bill, including insurance companies and medical associations, warn that the change could bring a wave of lawsuits and cause medical, automobile, and general liability insurance to skyrocket. It's a reasonable concern, and something Gov. Kathy Hochul should take into account as she weighs whether to sign or veto the bill.

Here's a suggestion for how such a bill might be less of an open invitation to hearse-chasing lawyers: Design the law to include penalties and sanctions for bringing frivolous nuisance cases based on scant evidence and clearly intended to extract a settlement. That could serve as a warning to attorneys and clients who are merely looking to monetize someone's death and get an easy payday from an insurance company, hospital, or other entity eager to avoid the costs and risks of a lawsuit. A law that seeks to show more compassion should not be used as an instrument of extortion.