Category: Malpractice

Grieving Families Act – A modern day amendment to New York’s Wrongful Death Law

Posted by Josh Silber on

In New York, if you lose a beloved family member as a result of malpractice or negligence, you can bring a wrongful death claim seeking damages. But, the current law only allows for the recovery of  economic damages and does not allow for the recovery of damages for the pain and suffering or grief caused by your loved one’s death. The time has come to amend New York’s antiquated and discriminatory Wrongful Death Law.

The New York State Senate and New York State Assembly have passed legislation known as the “Grieving Families Act” and sent this proposed amendment to Governor Hochul for her signature.  If it is signed into law, families of wrongful death victims will be able to recover damages for their pain and suffering.

Currently, in New York, the law only allows families of wrongful death victims to recover pecuniary damages or economic damages. These damages are generally calculated based on the earning capacity of the deceased person.

For instance, if the person supporting the family dies in an accident or as a result of medical malpractice, the family can recover damages which might include:

  • Out of pocket expenses
  • Funeral expenses
  • Loss of financial support
  • The value of services the deceased person would have provided to the family, had they been alive (loss of services).
  • Loss of inheritance that the victim would have left for their loved ones

There is no statutory authority to seek damages for the grief or emotional damages caused by a loved one’s death. For decades, we have argued that this is not fair.  It puts a value on people who work and earn but excludes many in society from seeking compensation where a loved one is lost. If the victim is a stay-at-home parent, an elderly person, a child,  or a disabled person, the family might not be able to recover compensation, due to the lack of provable financial losses.  This is a terrible insult to the lives of our loved ones. 

Most other states recognize that the death of a loved one is measured in ways that don’t only include the amount of money that person brought to the household. The loss of a loved one causes immeasurable grief.  When that loss was caused by someone else’s neglect, it is even worse.  That is what the Grieving Families Act seeks to correct.

Damages Recoverable under the Grieving Families Act

If the act is passed, families of wrongful death victims will be able to recover non-economic damages, which include:

Grief and emotional anguish caused by the victim’s death

Loss of support, protection, and assistance

Loss of nurture, guidance, comfort, companionship, and consortium

The Grieving Families Act significantly increases the measure of damages for families in New York.    We urge Governor Hochul to sign this Act into law. 

The Act can be found at https://www.nysenate.gov/legislation/bills/2021/S74

The attorneys at Abend & Silber have been handling accident cases in New York for decades and have extensive experience in wrongful death cases resulting from negligence, accidents and malpractice.

physicians-testify-against-other-physicians-malpractice

The Difficulty of Getting Physicians to Testify Against Other Physicians in Malpractice Suits

Posted by Josh Silber on

Not unlike the “blue wall of silence” wherein police officers hesitate to testify against other officers’ misdeeds, the medical profession has its own “white wall of silence” that underscores how difficult it is to get doctors to testify against other doctors in malpractice suits.

Recently, a twenty-year-old case has come to the forefront of discussion when a physician who was a witness for the defendant in a medical malpractice suit lied under oath by testifying that he had no knowledge of his colleague’s substandard work in a case where a patient suffered harm and permanent disability as a direct result of his surgeon’s negligence. The jury found for the surgeon in this case.

Dr. Lars Aaning from South Dakota confessed that his actions have haunted him for two decades. Since Aaning has retired, he decided to come clean and possibly shed light on why it is so difficult for plaintiffs to obtain expert testimony in medical malpractice lawsuits. On his behalf—and to rectify his own moral compass—Aaning has become a patient advocate and helps the medical malpractice lawyer who represented the patient in the aforementioned case.

One has to wonder how prevalent similar behavior occurs—how many other physicians lie to protect their colleagues. There is a fear of retaliation among medical professionals for speaking up in cases where patients are harmed; however, an alarming number of physicians have admitted that they are not truly in favor of informing patients of mistakes.

Aaning claimed he did not view his actions as lying per se, but simply supporting his colleague, and the pressure placed on physicians by their peers is the norm in the medical profession. Despite the American Medical Association (AMA) and American College of Surgeons asserting that physicians should always advocate for their patients, the doctor who does not stick up for his peers, regardless of the behavior, will feel pressure and stigma—sometimes serious enough for the physician to risk his/her own morality. As Anning confessed, he has carried the guilt of his actions for nearly two decades, and whereas it is too late—and too painful—to consider the actual weight his testimony had on the case’s outcome, he wanted to share his experiences and bring greater awareness to this far too common problem.

At Abend & Silber we work with outstanding and courageous medical experts in many specialties.  For more information, or if you have suffered harm by a medical professional, please contact us.