S T A T E   O F   N E W   Y O R K
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                                  5940

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              June 12, 2015
                               ___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the civil practice law and rules, in relation to  awards
  of  damages  in  medical,  dental  and podiatric malpractice causes of
  action, and future economic and pecuniary damages  for  birth  related
  neurological  injuries;  and to repeal subdivision (c) of section 5031
  of such law and rules relating to awards of damages  for  future  pain
  and suffering

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The civil practice law and rules is amended by adding a new
article 50-C to read as follows:
                               ARTICLE 50-C
                              DAMAGE AWARDS
SECTION 5051. DEFINITION.
        5052. DAMAGE AWARDS.
  S 5051. DEFINITION. AS USED IN  THIS  ARTICLE,  "NONECONOMIC  DAMAGES"
MEANS  NONPECUNIARY  DAMAGES  ARISING  FROM  PAIN AND SUFFERING, LOSS OF
SERVICES, LOSS OF CONSORTIUM, OR OTHER NONPECUNIARY DAMAGES.
  S 5052. DAMAGE AWARDS. IN ANY MEDICAL, DENTAL, OR  PODIATRIC  MALPRAC-
TICE ACTION, THE PREVAILING PLAINTIFF MAY BE AWARDED:
  (A) ECONOMIC AND PECUNIARY DAMAGES; AND
  (B)  NONECONOMIC  DAMAGES  SUFFERED  BY  THE  INJURED PLAINTIFF NOT TO
EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS; PROVIDED, HOWEVER, THAT  SUCH
LIMITATION SHALL BE ADJUSTED IN ACCORDANCE WITH THE CONSUMER PRICE INDEX
FOR  ALL  URBAN  CONSUMERS  (CPI-U), AS PUBLISHED ANNUALLY BY THE UNITED
STATES DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS.
  S 2. Subdivision (c) of section 5031 of the  civil  practice  law  and
rules is REPEALED and subdivisions (d), (e), (f), (g) and (h) are relet-
tered subdivisions (c), (d), (e), (f) and (g).

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11637-01-5

              

S. 5940                             2

  S  3.  Subdivisions (c), (d), (e) and (f) of section 5031 of the civil
practice law and rules, as added by chapter 86 of the laws of  2003  and
as  relettered  by  section  two  of  this  act,  are amended to read as
follows:
  (c)  The  findings  of future economic and pecuniary damages except in
wrongful death actions AND IN ACTIONS SUBJECT TO TITLE FOUR  OF  ARTICLE
TWENTY-NINE-D  OF  THE  PUBLIC  HEALTH LAW, shall be used to determine a
stream of payments for each such item of damages  by  applying  (i)  the
growth rate, to the (ii) annual amount in current dollars, for the (iii)
period  of  years, all of such items as determined by the finder of fact
for each such item of damages. The court  shall  determine  the  present
value  of the stream of payments for each such item of damages by apply-
ing a discount rate to the stream of  payments.  After  determining  the
present  value of the stream of payments for future economic and pecuni-
ary damages, thirty-five percent of that present value shall be paid  in
a lump sum, and the stream of payments for future economic and pecuniary
damages  shall  be adjusted accordingly by proportionately reducing each
item of the remaining stream of payments for future economic and pecuni-
ary damages and paying those amounts over time in the form of an annuity
in accordance with the provisions set forth in subdivision [(g)] (F)  of
this  section,  subject  to  the adjustments and deductions specified in
subdivision [(f)](E) of this section.
  (d) The discount rate to be used in determining the present  value  of
all  streams  of payments for periods of up to twenty years shall be the
rate in effect for the ten-year United States Treasury Bond on the  date
of  the  verdict.  As to any streams of payments for which the period of
years exceeds twenty years, the discount rate to be used in  determining
the  present value shall be calculated by averaging, on an annual basis,
the rate in effect for the ten-year United States Treasury Bond  on  the
date of the verdict for the first twenty years and two percentage points
above the rate in effect for the ten-year United States Treasury Bond on
the date of the verdict for the years after twenty years.
  (e) After making the applicable calculations set forth above:
  (1)  The court shall apply any set-offs for comparative negligence and
settlements by deducting them proportionately  from  each  item  of  the
damages  awards,  including  the lump sum payments specified in subdivi-
sions (b)[, (c),] and [(d)] (C) of this section, and the  present  value
of  the streams of payments specified in [such subdivisions] SUBDIVISION
(c) [and (d)].  After such deductions, the streams of payments specified
in [such subdivisions] SUBDIVISION (c) [and (d)] and their present value
shall be adjusted accordingly.
  (2) The court  shall  then  deduct  the  litigation  expenses  of  the
plaintiff's  attorney  proportionately  from  each remaining item of the
damages awards, including the remaining lump sum payments  specified  in
such  subdivisions  (b)[,  (c),] and [(d)] (C), and the present value of
the remaining streams  of  payments  specified  in  [such  subdivisions]
SUBDIVISION  (c)  [and  (d)],  and such expenses shall be paid in a lump
sum. After said deductions, the streams of payments specified  in  [such
subdivisions] SUBDIVISION (c) [and (d)] and their present value shall be
adjusted accordingly.
  (3)  The court shall then determine the attorney's fees based upon the
remaining damages awards, including  the  remaining  lump  sum  payments
specified  in such subdivisions (b)[, (c),] and [(d)] (C), and the pres-
ent value of the remaining streams of payments specified in [such subdi-
visions] SUBDIVISION (c) [and  (d)].    The  attorney's  fees  shall  be
deducted proportionately from each item of the remaining damages awards,

S. 5940                             3

including the remaining lump sum payments specified in such subdivisions
(B)  AND  (c)[, and (d),] and the present value of the remaining streams
of payments specified in [such subdivisions] SUBDIVISION (c) [and  (d)],
and  such  fees shall be paid in a lump sum.  After said deductions, the
stream of payments specified in [such subdivisions] SUBDIVISION (c) [and
(d)] and their present value shall be adjusted accordingly.
  (4) Any liens which are not the subject of a  separate  award  by  the
finder  of fact shall then be deducted proportionately from each item of
the remaining damages awards, including the remaining lump sum  payments
specified  in such subdivisions (b)[, (c),] and [(d)] (C), and the pres-
ent value of the remaining streams of payments specified in [such subdi-
visions] SUBDIVISION (c) [and (d)], and such liens shall be  paid  in  a
lump  sum.  After  said  deductions, the stream of payments specified in
[such subdivisions] SUBDIVISION (c) [and (d)] and  their  present  value
shall be adjusted accordingly.
  (f)  The  defendants and their insurance carriers shall be required to
offer and to guarantee the purchase and payment of an  annuity  contract
to  make  annual payments in equal monthly installments of the remaining
streams of payments specified in  [such  subdivisions]  SUBDIVISION  (c)
[and  (d)],  after  making  the deductions and adjustments prescribed in
subdivision [(f)] (E)  of  this  section.  The  annuity  contract  shall
provide that the payments shall run from the date of the verdict (unless
some  other  date  is  specified in the verdict) for the period of years
determined by the finder of fact (except  the  stream  of  payments  for
future  pain  and  suffering, which shall not exceed eight years) or the
life of the plaintiff, whichever is shorter, except that:
  (1) awards for lost earnings shall be paid for the full  term  of  the
award determined by the finder of fact; and
  (2)  awards  for any item of economic or pecuniary damages as to which
the finder of fact found that the loss or item of damage  is  permanent,
the  payments for that item shall continue to run for the entire life of
the plaintiff, increasing each year beyond the period  of  years  deter-
mined by the finder of fact at the same growth rate as determined by the
finder of fact.
  S  4.  Section 5034 of the civil practice law and rules, as amended by
chapter 446 of the laws of 1999, is amended to read as follows:
  S 5034. Failure to make payment. If at any  time  following  entry  of
judgment,  a judgment debtor fails for any reason to make a payment in a
timely fashion according to the terms  of  this  article,  the  judgment
creditor may petition the court which rendered the original judgment for
an  order  requiring  payment  by the judgment debtor of the outstanding
payments in a lump sum. In calculating the amount of the lump sum  judg-
ment,  the  court  shall  total  the remaining periodic payments due and
owing to the judgment creditor, as calculated  pursuant  to  subdivision
[(e)] (D) of section five thousand thirty-one of this article, and shall
not  convert  these  amounts  to their present value. The court may also
require the payment of interest on the outstanding judgment.
  S 5. This act shall take effect immediately, and shall apply to causes
of action and claims accruing on or after such date.