New Jersey Healthcare Providers May Face Unlimited Wrongful Death Claims For Grief
[Image: Bridge across "Bottomless Pit" in Mammoth Cave, by Daniel Schwen, Nov 25th, 2007]
The November 26, 2007 print edition of the New Jersey Law Journal carried a story by Maria Vogel-Short entitled "Lawmakers Divided Over Caps for Wrongful Death Grief Damages." The article describes a bill, A-1511/S-176, that would expand New Jersey's Wrongful Death Act, N.J.S.A. 2A:31-1, to permit survivors to recover for their own mental anguish and emotional pain and suffering (i.e., "grief"). Currently, the law limits recovery by survivors to pecuniary damages. Apparently, this result is thought by some to be "unfair" to survivors of very young and very old decedents, since the pecuniary losses resulting from such deaths are relatively small when compared with those from an economically productive adult decedent. Translation: juries find it much harder to reach large verdicts for the survivors of very young and very old decedents, so something has to be done.
This reasoning sidesteps the basic question of whether a totally new basis for awarding damages in New Jersey is necessary, or what its consequences will be for the rest of us. It also leaves aside the fact that survivors of all decedents, even the ones who already recover large sums because of pecuniary losses, will be able to add a new claim to their lawsuit.
My former partner, David Kott, who represents the New Jersey Business and Industry Association, is quoted in the article to say that "the law as written could foster an anti-business atmosphere in New Jersey", citing a "problematic tort climate". In a subsequent phone interview, David also pointed out the potentially disastrous effects of this bill on healthcare providers. As he noted, doctors are already having a hard time finding affordable medical malpractice insurance, particularly in certain specialties. Moreover, once the possibility of completely unlimited damages for grief is introduced into settlement negotiations, you have to wonder how many cases that previously would have settled at the policy limits will now go to trial. Even moderately successful physicians in New Jersey who own highly appreciated residential real estate and other assets will become a source of funding for excess liability claims.
The resolution of death claims resulting from alleged medical negligence is already difficult in the best of circumstances. The proposed legislation would propel these negotiations into uncharted territory.
The New Jersey Law Journal article focuses primarily on the debate over whether "caps" should be placed on damages for "grief". Why not ask the more basic questions? Why are we doing this? Where are the cases of gross injustice that must be remedied? Who will benefit? What effect will it have on New Jersey's already strained healthcare delivery system? Let's hope somebody in Trenton thinks about this before we plunge into the unknown.
