What is a Wrongful Death Claim in New York?
Each state has different laws regarding wrongful death. If you’re looking for answers about the laws from someplace outside New York then this page will not provide accurate information.
In New York, wrongful death claims are made when someone dies due to the negligence of another.
For an attorney to bring such an action for a client, a representative must first be appointed for the estate, and then that representative brings the claim. That representative — usually a family member — is the lawyer’s client.
There are two broad categories of injuries. The first is the pain and suffering that the deceased suffered, a claim that belonged to the deceased. Depending on the circumstances, this might be a brief few seconds, or sometimes many years, but includes all the time from the moment of injury until the moment of death.
But there are other claims – those that fall under wrongful death – that are claims made by the surviving family members. While these are often difficult to evaluate — how much is parental guidance “worth” to a young child? — a court will provide guidelines to a jury.
These monetary losses belong to those that relied upon the deceased – this is usually a spouse and children, a parent, and sometimes even a grandchild. Note that each of these guidelines below refers to the economic value of the deceased, and not the emotional well being of the surviving family members.
The character, habits and ability of the deceased;
The circumstances and condition of the survivors (were they young children or emancipated adults?);
The services that the decease would have performed for the survivors;
The portion of their earnings that the deceased would have spent in the future for the care and support of the survivors;
The age and life expectancy of the deceased;
The ages and life expectancies of the survivors;
For children, the value of the intellectual, moral, and physical training, guidance and assistance that the parent would have given the children had s/he lived;
The amount by which such decedents, had they lived, would have increased their estate from earnings and thus added to the amount that would have been inherited from the deceased.
Damages will also be awarded, of course, for the medical and funeral expenses.
New York Does Not Have A Claim for Grief
As of this writing in July 2024, New York does not allow the surviving family members to sue for their own grief. This includes any award for sorrow, mental anguish, injury to feelings, or for loss of companionship.
Back in 1847, New York had established the first wrongful death statute in the country, and it was geared toward the wages that were lost. While this was progressive at the time, it also meant that those that were not working – children, stay at home parents, the disabled or the retired – were considered to have little value in the eyes of the state.
Since that time, the vast majority of states have not only established their own wrongful death laws, but also made grief of the surviving family members compensable. New York, once a leader, not seriously lags on this issue.
You can read more about this hole in the law from a 2017 post — New York’s Grieving Families — at Turkewitz’s award winning New York Personal Injury Law Blog.
In 2023, the Legislature finally passed an updated wrongful death stature, but it was vetoed by Gov. Kathy Hochul. A more modest Grieving Families bill was then passed, which Gov. Hochul vetoed a second time. A third version was passed in 2024, which the governor has not yet acted upon.
Wrongful Death Cases Examples:
These are some of the wrongful death cases handled by the Turkewitz Law Firm:
$7M– Bronx Medical Malpractice Brain Damage During Childbirth and Subsequent Wrongful Death
Settlement for mother brain damaged during childbirth, who subsequently died (2015).
$550K – Nassau Nursing Home Negligence – Broken Hoyer lift.
The sling seat of a Hoyer lift broke, dropping a 70-year-old nursing home resident to the ground in 2016, with numerous fractures and death a year later. Settled March 2022 during trial.
$510K – Brooklyn Wrongful Death and Medical Malpractice.
Pre-trial settlement, May 2024. Failure to diagnose and treat obstructed bile duct from infected gallstones, leading to sepsis and death.
$400K – Queens Medical Malpractice — Hernia Repair, Lacerated Liver, and Ruptured Spleen — Failure To Properly Type Blood — Wrongful Death
Settlement, mid-trial (1997), for the family of a 56-year-old Queens seamstress who bled to death during surgery when her liver was negligently lacerated (in New York, one can not be compensated for grief, only for monetary loss and pain and suffering).
$285K – Westchester Hospital Malpractice – Doctor Error – Wrongful Death
Hospital malpractice and doctor error when catheter placed in carotid artery instead of jugular vein, causing wrongful death of 87-year-old Westchester man
