Special attention should be directed toward the early identification of a decedent’s distributees in defending cases in which the malpractice of the defendant is claimed to have caused the death of the patient. Recall that the wrongful death claim is a creature of statute governed by EPTL Article 5, which defines the distributees for whom a death claim may be asserted. See Ratka v. St. Francis Hospital, 44 NY2d 604 (1978). The identity of the decedent’s distributees is fixed and ascertainable at the time of death, and the defense of the malpractice death case should not ignore the identification of the distributees in the course of discovery and trial preparation. Wrongful death damages have been defined in New York since 1847 as the pecuniary loss of the distributees [see Liff v. Schildkraut, 49 NY2d 622 (1980)]. However, there continue to be issues relating to the identity of distributees addressed for the first time on post-trial motion and appeal. This is usually because a lump sum wrongful death verdict has been rendered on a record that includes evidence of the circumstances of household members of the decedent who are not distributees. [Cf. Perez v. St. Vincent’s Hospital, 60 AD2d 663 (2d Dept. 2009)].
The oft suggested practice is to have trial courts direct the jury to determine a single total amount of wrongful death damages, with proper allocation of the damages to the distributees left to the Surrogate’s Court [see Carter v. NYCHHC, 47 AD3d 661 (2d Dept. 2008)]. In today’s world, not every “family” member is a true distributee, so the available discovery devices should be employed to identify those entitled to compensation before evidence is taken at trial. Settling the issue as to who is truly a distributee in advance of trial is the efficient and practical approach.
Pecuniary injury to the distributees is the focus of the wrongful death claim, requiring discovery beyond the gross earnings of the decedent. Unless the distributees are clearly identified in the early stages of discovery, the case may proceed to trial with inadequate discovery of the pecuniary loss of one or more distributees. The distributees are not direct parties to the litigation, but their relationship with the decedent and their general circumstances are relevant to the calculation of their pecuniary loss, so discovery requires a broad scope. As stated by the court of appeals in Gonzalez v. NYCHA, 77 NY2d 663, at 668 (1991), the essence of the cause of action is the distributees’ reasonable expectancy of future assistance or support which was frustrated by the decedent’s death. The defense of that damages issue cannot be properly prepared for trial without identification of distributees and discovery beyond the mere financial capacity of the decedent to contribute to their support. The spectrum of recoverable pecuniary loss for an adult child, for example, includes cases like Bumpers v. NYCHA, 139 AD2d 438 (1st Dept. 1988), where the correct answer may be zero, but also includes cases in which damages are significant if that child has a disability and a proven record of parental support.
Not defining the set of distributees of a particular decedent before trial leads to the type of chaos encountered by the Appellate Division in, supra at 663, a case in which the patient died as a result of an untreated aortic dissection, leaving nine adult children and 59 grandchildren. Because all of the decedent’s children survived her, none of the grandchildren qualified as distributees. Nevertheless, the trial resulted in a verdict that included awards of pecuniary loss to seven of the grandchildren, whose claims were not the subject of admissible evidence, while none of the decedent’s children were compensated. A potentially successful defense of the wrongful death cause of action thus became a new trial on the issue of damages. Likewise, in Perez v. St. Vincent’s Hospital, 66 AD2d 663 (2d Dept. 2009), an appeal to the Appellate Division was required to address the fact that the jury awarded damages to two children of the decedent who had no recoverable loss. As seen in Ramos v. La Montana, 247 AD2d 333 (1st Dept. 1998), the pecuniary loss of the children of the decedent may be expressed by a single sum on the verdict sheet, so if one child does not qualify as a distributee, a new trial on the issue of damages is necessary. In Reed v. Fowler, 281 AD 840 (2d Dept. 1953), the court went so far as to say that evidence of gifts to grandchildren whose mother survived the decedent was inadmissible at trial, the receipt of which was one of the grounds for ordering a new trial.
The defense has the right, if not the obligation, to determine the issues regarding the identity of distributees prior to trial. This question was addressed in Reed v. County of Schoharie, 51 AD2d 499 (3d Dept. 1976), in which there were competing categories of distributees, one being the siblings of the deceased and the other being the father of the deceased. The father of the deceased would have been the only distributee except for the claim that the decedent had been abandoned by his father as a minor. The court agreed with the defense that the threshold issue of identifying the rightful distributees needed to be determined by evidentiary means prior to trial because proof of the claims (or even the existence) of non-distributees at trial was irrelevant. The court held that the defendants were “entitled to know, prior to trial, who are decedent’s distributees in order to properly defend the action.”
In Clark v. Weinstein, 23 AD2d 1054 (4th Dept. 2005), the court was faced with a wrongful death claim against a physician who had treated a patient survived by his wife, his daughter, and the daughter’s two children. The two grandchildren had little contact with their mother who had historically provided them with no financial support. The decedent and his wife had been awarded custody of the grandchildren, one at age four and one at age three, and had raised them for eleven years before the demise of Mr. Clark. The court held that the wife and daughter were entitled to recover as distributees of the decedent’s estate, but the grandchildren were not. The reasoning was that the daughter was legally obligated to support her children to majority, so although she was estranged from her family, she had lost the support provided by her father to her children, which she was legally obligated to replace. The court was explicit to the effect that this was not a recovery for the grandchildren who were nondistributees.
The consistent success of pretrial motions to limit wrongful death recovery to distributees with pecuniary loss cannot be ignored. In 143 AD3d 787 (2d Dept. 2016), the lower court was reversed and the claims of two stepchildren were dismissed prior to trial by the Appellate Division because stepchildren are not distributees. In Milczarski v. Walaszek, 108 AD3d 1190 (4th Dept. 2013), the court allowed the decedent’s brother’s claim for pecuniary loss to proceed while dismissing the claim of the decedent’s sister. In the case of Bumpers, supra, the claims of all adult children of the deceased for loss of companionship, comfort, nurture, and assistance were dismissed prior to trial. In Johnson v. Richmond University Medical Center, 101 AD2d 1087 (2d Dept. 2012), the court allowed the claims of two sisters of the deceased to go to trial, but dismissed the claims of a brother and a nephew. In Stieve v. H.R.H. Construction (63 Misc.2d 409 Sup Ct, N.Y. County 1970), the claims by two illegitimate children who were the sole known survivors of the decedent were dismissed despite evidence that the decedent had acknowledged them as his children. The court found that because there were no formal orders of filiation within two years of their birth, legitimacy was not conferred on the children and they were not distributees. The claims advanced on their behalf were therefore dismissed.
The cases in this area are fact specific and there are many reported cases contesting whether as a matter of law a particular person is a distributee of the decedent, or whether a pecuniary loss has occurred. Each case must be evaluated on its own facts, and those facts must be developed well in advance of trial.
This article is also on Law.com: The Need to Identify Distributees in Defending Malpractice Death Cases