NY EPTL 5-4.3 Amount of Recovery

This post is part of the NY wrongful death statutory corpus. For the Part 4 hub, see: NY EPTL Part 4 (Wrongful Death).

§ 5-4.3 Amount of recovery

(a) The damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought. In every such action, in addition to any other lawful element of recoverable damages, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees, or for the payment of which any distributee is responsible, shall also be proper elements of damage. Interest upon the principal sum recovered by the plaintiff from the date of the decedent's death shall be added to and be a part of the total sum awarded.

(b) Where the death of the decedent occurs on or after September first, nineteen hundred eighty-two, in addition to damages and expenses recoverable under paragraph (a) above, punitive damages may be awarded if such damages would have been recoverable had the decedent survived.

(c)

(i) In any action in which the wrongful conduct is medical malpractice or dental malpractice, evidence shall be admissible to establish the federal, state and local personal income taxes which the decedent would have been obligated by law to pay.

(ii) In any such action tried by a jury, the court shall instruct the jury to consider the amount of federal, state and local personal income taxes which the jury finds, with reasonable certainty, that the decedent would have been obligated by law to pay in determining the sum that would otherwise be available for the support of persons for whom the action is brought.

(iii) In any such action tried without a jury, the court shall consider the amount of federal, state and local personal income taxes which the court finds, with reasonable certainty, that the decedent would have been obligated by law to pay in determining the sum that would otherwise be available for the support of persons for whom the action is brought.

What 5-4.3 Does

Function: Defines recoverable wrongful death damages as "fair and just compensation for the pecuniary injuries" to the persons for whose benefit the action is brought, and addresses related items like interest, punitive damages (in the defined timeframe), and admissibility/instructions regarding income taxes in medical/dental malpractice wrongful death cases.

Subsection map

• 5-4.3(a): Pecuniary injuries; includes medical/nursing expenses incident to the injury causing death; includes funeral expenses; adds interest from the date of death.
• 5-4.3(b): Allows punitive damages in defined cases (deaths on or after September 1, 1982) if they would have been recoverable had the decedent survived.
• 5-4.3(c): In medical/dental malpractice wrongful death actions, allows tax evidence and requires jury instructions (or court consideration) regarding the personal income taxes the decedent would have paid.

Crosslinks

• Hub: NY EPTL Part 4
• Distribution: NY EPTL 5-4.4
• Compromise workflow: NY EPTL 5-4.6