Times Union: Wrongful death bill would cause legal and economic turmoil

By: Tom Liptak and Claire Rush

Before the year ends, Gov. Kathy Hochul faces a decision with far-reaching implications. A bill passed by both houses of the Legislature would recklessly broaden the scope of liability in wrongful death lawsuits. It represents a seismic change that extends beyond the standard practices of other states. As written, the bill could have severe repercussions for our state's economy, our health care systems and our bedrock legal principles.

The ramifications are too significant to ignore: Gov. Hochul vetoed similar legislation earlier this year. She should veto this bill, too.

Despite some minor changes, the latest version of the bill continues to suffer from the same critical flaws that led Gov. Hochul to reject the previous proposal. Although lawmakers claim there will be no fiscal impact on the public or private sectors, medical professionals, small businesses and local governments warn that the bill will set off a cost crisis. Likewise, the Legislature insists that the proposed legislation would bring New York in line with 47 other states. This representation ignores that the bill under consideration is vastly more expansive than similar laws anywhere else.

An analysis by Milliman Inc., an internationally respected data analytics firm, forecasts significant increases in insurance costs across all sectors, from critical government services to health care providers to individual car insurance premiums. This economic burden will be shouldered by every New Yorker.

Under this bill, courts and juries will be left to interpret abstract concepts without clear guidelines to fairly assess and distribute damages. Such vagueness risks creating a system where awards are arbitrary and inconsistent. This ambiguity would not only undermine the fairness of the legal process but also would add to the already-substantial backlog in our courts.

What’s more, the retroactive application of the law as proposed in the bill will subvert long-standing legal principles and lead to a flood of appeals, creating chaos in the judicial system.

Perhaps most critically, any subsequent amendments aimed at mitigating its unintended consequences may be unconstitutional. Article I, Section 16 of the state constitution safeguards the right to recover damages for injuries resulting in death. Any post-enactment amendments could set off a constitutional crisis, making it imperative to get the legislation right the first time.

In its current form, this bill undermines the principles of fairness and due process in our legal system. While the intent to modernize the law is commendable, the method proposed here is deeply flawed. As such, we urge Gov. Hochul to veto this bill.

It's crucial that we take a more balanced approach, one that considers all stakeholders and the long-term implications. We cannot afford to make a hasty decision that will have devastating and potentially irreversible consequences.

Thomas E. Liptak is president of the Defense Association of New York. Claire F. Rush is chair of the Board of Directors.