Fix flaws in New York’s Grieving Families Act
Measure goes too far, but revisions should be simple
Gov. Kathy Hochul apparently remains in a state of indecision about whether to sign the Grieving Families Act, a major overhaul of New York’s wrongful-death statute. The bill was first passed in June of 2022, but the governor was not able to decide by the year’s end, so she persuaded the state Senate to give her until January 30 to deliberate.
The governor is right to be ambivalent. New York’s law is badly in need of liberalization; it is perhaps the most regressive in the nation, and the Senate and Assembly were almost unanimous in passing this bill. Nonetheless, the insurance, medical, and business communities protesting its risks to New Yorkers are not crying wolf: The bill as it stands has deep flaws, and there is no reason to trust — as legislators sometimes propose — that the courts will be able to deal with the problems.
The good news is that the bill can be fixed. Although it will surely take political skill and willpower for New York legislators to advance a modified version of the bill and see it through gubernatorial endorsement, the core requirements for fixing it are not complicated. They are merely the flip side of its flaws.
First, the good: The Grieving Families Act says that partners, parents, and children of someone killed by the negligent or wrongful conduct of another can recover damages for the loss of companionship, love, and society of their loved one. Almost every other state permits loss-of-companionship damages for some or most of those relationships, but New York limits recovery principally to lost income stream.
An amendment like this seems like an easy choice for those who think that accountability should exist when a child is wrongfully killed – that it is not just the spouses of high earners who should be able to use New York’s courts to redress the wrongful killing of their loved ones. Perhaps such a legal change would lead to somewhat higher costs for insurance companies, businesses, doctors, and (indirectly) consumers, but because the overwhelming majority of states already have similar rules in their law, there is reason to believe that New York could take such changes in stride.
In my view, this is roughly what the Grieving Families Act should say and what the governor should sign if presented to her. The version of the act that the governor has been asked to sign says this, but it also says much more.
It is not just partners, parents, and children who can recover, but also grandparents, siblings, and grandchildren – and indeed, any “issue” of the deceased. The list is not even closed there, but includes any “close’ family member, and the law itself requires that the question of who counts as a “close” family member goes to the jury. It is not just damages for lost companionship that are recoverable, but – in a separate category – the “costs” of grieving. And it is not just the costs of grieving, but all the costs of any mental or psychological condition or illness that arose from the grieving.
No state has any law close to this. New York would zip from at or near the bottom of the list in wrongful-death actions to the very top, miles above any other, and it would do so instantly. When liability insurance companies complain that such changes are far beyond what could be foreseen or planned, they are not exaggerating.
One might argue that businesses, doctors, and insurance companies will adjust; they always do. Perhaps that is so, but adjustments have costs to everyone and a radical, unprecedented set of changes is likely to lead to a radical, unprecedented set of adjustments in an already-oversensitive economy. Moreover, the statute is by its own express terms retroactive. So a wrongful-death claim related to alleged malpractice on a widely beloved 35-year-old family man in 2020 could lead to claims by his spouse, his children, his parents, his grandparents and his brothers and sisters in 2023, and could bring in money damages for all those close family members who miss him and any mental illnesses they have developed since grieving for him (if plausibly related to the grieving). Physicians, businesses, and liability insurers for 2020 were in no sense prepared for this. Retroactivity for this level of change is so highly destabilizing that it raises genuine issues of due process.
None of these problems would be hard to fix. Potential beneficiaries should be limited to partners, parents, and children of the deceased, and persons in close relationships essentially equivalent to those (which should not be a jury question). Damages for grieving (if they are included) need not be a separate category from loss of companionship, and if they are, they should not be an opening for all mental or psychological illnesses potentially flowing from grieving; this is uncharted territory, and New York in 2023 should not be the one to chart it. The changes should not be retroactive. Implementing these changes while maintaining the other features already in the Grieving Families Act would put New York where it ought be, erasing discontinuities with the vast majority of states. Although a bill with these changes would challenge health care, insurance, and other industries, it would give them time to adjust.
A Grieving Families Act along these lines would be prudent and fair. If New York’s legislators are willing to make these changes, Gov. Hochul should be proud, not afraid, to sign it.