Sweeping changes to wrongful death statutes in New York could open a much longer filing period for claims, expand the types of survivors eligible to sue nursing homes and the kinds of damages they can seek — and send providers’ liability insurance rates soaring.
The Grieving Families Act was awaiting the signature of Gov. Kathy Hochul (D) as of Friday, and skilled nursing providers and the state’s defense bar are working furiously behind the scenes to encourage a veto.
If signed into law, the act would allow survivors to sue nursing homes for wrongful death up to 3½ years after a resident dies, creating the longest window in the nation. It also would greatly expand the types of damages that can be awarded. A white paper published this week estimates that means juries would typically sustain awards of at least $1 million per case. Unlike 29 other states, New York has no cap on damages.
And that will drive annual losses and insurance premiums sky-high, a trio of attorneys from Vigorito, Barker, Patterson, Nichols & Porter, LLP, warned recently in a statewide risk management journal.
The act “is expected to blow the roof off medical and nursing home liability with an increase of 39.5% in premium and 45.3% in losses,” wrote the authors, led by Dylan Braverman, partner and co-chair of the firm’s COVID-19 litigation team and a frequent nursing home defender.
Actuaries estimated that self-insured providers, including many nursing homes, will feel the biggest impact with an increase in annual losses of $1.72 billion, equating to a 15.3% increase. Medical professional liability losses, meanwhile, are estimated to increase by 45.3%, driving premiums up to nearly 40%.
Providers nationwide are already facing steep insurance hikes, driven in part by fear of costly COVID claims that could still materialize and also by many insurers who left the long-term care marketplace after the pandemic’s start.
In addition to costs, the New York act also would increase the liability burden for providers, increasing the time they must store and safely manage files in case of potential claims. And the longer window for wrongful death could make it a more appealing claim type for potential litigants.
Braverman and fellow attorneys Megan Lawless and Nicole M. Varisco noted that medical malpractice limits and negligence claims must be filed in a more timely manner, at 2½ and 3 years, respectively.
But the biggest concern might be the allowance of new emotional damage claims, including:
Grief or anguish, including any disorder caused by said grief and anguish;
Loss of love, society, protection, comfort, companionship, and consortium; and
Loss of nurture, guidance, counsel, advice, training, and education.
“These vague and broad terms are undefined,” the attorneys argued. “The language of this statute suggests that ‘close family members’ need offer no objective evidence. Rather, they merely require the jury to accept their grief to obtain compensation.”
Braverman and team put the odds of Hochul’s signing the bill at 50/50. It is subject to a pocket veto if the governor takes no action by Dec. 31. In that case, the act would go back to lawmakers who could make revisions.
The white paper said those could include more provider-friendly language that would start the 3½-year window looking forward, rather than including past cases already in play. Another desirable change would be to have the Legislature define “close family” rather than asking juries to decide if an individual is close enough to deserve standing.