New York Governor Kathy Hochul, for the second time in as many years, has vetoed the Grieving Families Act, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality. The bill was delivered to the Governor’s desk on December 29, 2023, and vetoed that same day.
New York currently provides that a wrongful death lawsuit can only be brought by a child, parent, spouse, or the personal representative for the estate of the decedent. Extended family members, such as siblings or cousins, do not have the right to bring a wrongful death lawsuit in New York unless they also have been named as the guardian or personal representative of the estate.
The damages that can be sought in New York are limited to the economic or pecuniary losses of the survivors resulting from the death, the medical and funeral costs related to the final injury or illness, and the value of parental guidance, nurturing, and care for surviving children. If the decedent sustained conscious pain and suffering prior to passing, an action can be brought to recover those damages as well. However, the current law does not allow recovery for pain and suffering, mental anguish, or loss of love or companionship for surviving family members.
After suffering a veto last year, a revised version of the bill was passed by the Legislature in an attempt to cure the prior objections. While the prior bill would have opened up the pool of potential plaintiffs to the vaguely defined “close family members,” the 2023 legislation more narrowly defined the pool of plaintiffs who would be able to bring a case for wrongful death to only spouses or domestic partners, children, foster children, step-children, step-grandchildren, parents, grandparents, step-parents, step-grandparents, siblings or anyone acting “in loco parentis” to the deceased person. Furthermore, the statute of limitations in the proposed 2023 legislation was expanded to three years from the date of death, up from the current two years, but not as long as the three-and-a-half years proposed last year.
The 2023 version however still included a provision applying the law retroactively to any cause of action accruing on or after July 1, 2018, regardless of when the claim was filed, did not implement a cap on damages, nor carve out an exception for medical malpractice claims.
It is clear that these revisions were not substantial enough for the Governor, who had expressed a willingness to compromise on a bill that would help family members of those who died in wrongful death cases, while still “providing certainty for consumers and businesses.”
In her veto, Hochul called the legislation well-intentioned, but said it “would represent a foundational shift in New York’s wrongful death jurisprudence that would have likely resulted in significant unintended consequences.” She added that “[l]egitimate concerns have been raised that the bill would likely lead to increased insurance premiums for the vast majority of consumers, as well as risk the financial well-being of our health care facilities - most notably, for public hospitals that serve disadvantaged communities.”
The Governor had previously voiced support for a more limited reform of New York’s Wrongful Death Statute by limiting claims for grief and emotional damages to parents who suffered the loss of a child, implementing a cap on emotional damages, not applying new legislation retroactively to pending claims, not extending the statute of limitations, and excluding claims for medical malpractice.
The vetoed bill is returned to the house that first passed it, in this case the Assembly, together with a statement of the reason for Governor Hochul’s disapproval. A vetoed bill can become law if two-thirds of the members of each house vote to override the Governor's veto. The initial floor vote in the Assembly was 131-12, far above the two-thirds threshold. The vote in the Senate was equally imbalanced at 54-8. The Legislature has until the end of the session to override the Governor’s veto.
Hurwitz Fine will continue to monitor the bill and report on events. As we noted upon passage, we can expect significant continued insurance and health care industry opposition to this legislation due to the severe financial consequences that would adversely impact nearly all New Yorkers. The bill, if ultimately passed into law over the Governor’s veto, will face constitutional challenges.
The full text the Governor Kathy Hochul’s veto memo can be found here.