Following up on our previous updates regarding the pending New York legislation known as the Grieving Families Act, just before the deadline on January 30, 2023, Governor Hochul vetoed the piece of legislation.
For months, the New York legal and business communities had been following the progress of Bill S74A, also known as the "Grieving Families Act," which was passed by the New York legislature in June 2022. After Governor Hochul was reelected and sworn in, we learned that she had until January 30, 2023 to sign the current or an amended version of the bill, send it back to the legislature for more changes, or veto it. Although the legislature and plaintiffs bar had been pressuring the governor to sign the bill, other groups launched a concerted effort to veto or at least amend the bill.
Hospitals, healthcare providers, defense bar associations, firms, insurance companies, and others launched a counterattack that not only educated the Governor's Office on the potential impact of the bill and recommended veto but also proposed amendments that would not be as devastating to the economy. For example, actuarial firm Milliman estimated the law would result in premium hikes of about 39.5% due to a $600 million annual increase in claim costs. Our office also provided a memorandum to the Governor's Office on the potential impact of the bill.
As discussed in prior client alerts, the statute in its proposed form would vastly increase the amount of recoverable damages in a wrongful death case, primarily in two ways. First, the Act would greatly expand the class of plaintiffs entitled to recover, including but not limited to anyone deemed by the fact-finder to have a "close" relationship with the deceased. Second, the Act would allow claimants to recover not just for economic damages (as per the current iteration of the Wrongful Death statute; see Estates, Powers and Trusts Law § 5-4.3 (a)), but also for grief, sympathy, and loss of consortium. Moreover, at least in its current form, the Act would apply retroactively to all pending wrongful death lawsuits in New York.
On Monday morning, Governor Hochul published an op-ed piece in the New York Daily News stating that there were serious concerns regarding how the changes would affect the economy and health care system. She noted "We must fully understand the impacts of potential changes on small businesses, families, doctors and nurses, struggling hospitals in underserved communities, and the overall economy to ensure that undesired consequences don't overshadow the good we can do for grieving families."
Governor's Hochul's counter-proposal was not released publicly but we knew she was considering a more restricted form of the bill. This was also confirmed by Weinstein and State Senator Brad Hoylman-Segal, who said Monday that her proposal would restrict the legislation (for non-pecuniary loss) to the wrongful deaths of people under 18 and exempt deaths that "involve or give rise to any actual or potential claim for medical malpractice of any kind."
Proponents of the bill in the legislature noted that they will again pass the bill. The New York Academy of Trial Lawyers have also noted that they would continue fighting for passage of this bill. It is expected that the legislature may bring another version of the bill in 2023.
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