MEMORANDUM IN OPPOSITION
S.1266 (DeFrancisco) – Senate Judiciary Committee
A.6420 (Weinstein) – Assembly Judiciary Committee
An Act to expand damages in wrongful death actions to include sorrow, mental anguish, loss of companionship, protection, comfort, etc.
On behalf of NYTortReformNow.org, a broad based coalition of businesses, professionals, municipalities, not-for-profits and concerned citizens, we are writing in STRONG OPPOSITION to the above referenced bill.
NYTortReformNow.org opposes the expansion of recovery of non-economic damages in wrongful death action. Particularly objectionable in this Bill is the new language that provides that damages shall include: emotional loss and mental anguish, and loss of companionship, nurture, guidance, advice, services, comfort, etc, of the decedent.
Current law allows recovery for all economic losses arising from the death of a family member. Present law also permits a recovery for pain and suffering experienced by a decedent prior to death. As an additional element of damage, fear of impending harm or death (psychic harm) is fully (comparable) compensable. Pain and suffering experienced by those not directly injured as a matter (b) of sound and well balanced public policy is not and should not be recoverable. For two hundred years, such recoveries have not been authorized in New York State. No change in circumstance has occurred in recent years which would provide a justification for altering the State’s longstanding wrongful death statute.
NYTortReformNow.org’s opposition is further supported by the fact that these types of emotional losses are totally speculative and highly susceptible to manipulation. This type of loss simply encourages juries to award excessive amounts based on sympathy for the survivor. The defendant is deprived of its most valuable defense in these cases - the opportunity to cross examine a material witness - the deceased. This is a bill that puts the award of damages at odds with the jury’s role of a fact finder. Such unreasonable expansion of the wrongful death laws will have a definite impact on the availability and affordability of liability insurance coverage in New York.
In fact, a recent 2008 actuarial study of the instant legislation prepared by the respected actuarial firm of Milliman estimates that, if enacted, the bill would increase liability rates by more than twenty percent, with an annual increase in losses and related insurance expenses of 1.8 BILLION DOLLARS. Particularly hard hit will be hospitals and medical providers with liability rates for physicians rising more than 50 PERCENT.
The serious negative implications of this bill are brought to light simply by focusing attention on the problem of those New Yorkers without health insurance. (One million, seven hundred thousand) As of 2006, TWO MILLION SIX HUNDRED THOUSAND New Yorkers lack any form of health insurance. Many others are underinsured. There is no doubt that the number of New Yorkers without health insurance will increase dramatically as a result of the increased costs created by this legislation. Hospitals and other health providers will be forced to pass on the increased costs of liability insurance created in the wake of this bill. In turn, employers who are already forced to reduce health benefits due to affordability will find it increasingly more difficult to continue to afford coverage for their employees. More and more families will be facing bankruptcy following a serious uninsured accident or sudden illness.
Many of our sister states, rather than increasing the costs associated with their civil liability systems, have enacted systemic tort reforms, including (expensive) expansive joint and several liability reform and the imposition of caps on non-economic awards. New York simply cannot move in the opposite direction by adding huge costs to its civil justice system. Our state’s future economic well-being hangs in the balance. For the foregoing reasons, we urge that the bill be held.
Respectfully,
Mark C. Kriss
Executive Director
NYTortReformNow.org