Senate Bill S6781

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6781
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               June 16, 2017
                                ___________
 
 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.
   § 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.
   § 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.
   § 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 rules is REPEALED and subdivisions (d), (e), (f), (g) and (h) are relet-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.
                                                            LBD13250-01-7
              

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   §  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. 6781                             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.
   §  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:
   § 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.
   § 5. This act shall take effect immediately, and shall apply to causes
 of action and claims accruing on or after such date.