§ 5031 — Basis for determining judgment to be entered

New York § 5031

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 50-A: Periodic Payment of Judgments In Medical and Dental Malpractice Actions

Text

§ 5031. Basis for determining judgment to be entered. In order to\ndetermine what judgment is to be entered on a verdict in an action to\nrecover damages for medical, dental, or podiatric malpractice, or\ndamages for wrongful death as a result of medical, dental, or podiatric\nmalpractice, the court shall proceed as follows:\n (a) The court shall apply to the findings of past and future damages\nany applicable rules of law regarding additurs and/or remittiturs, and\nadjust the verdict accordingly.\n (b) Awards for all past damages, all damages for future loss of\nservices, all damages for future loss of consortium, all damages in\nwrongful death actions, and damages for future pain and suffering of\nfive hundred thousand dollars or less shall be paid in a lump sum. In\nany case in which all damages are to be paid in lump sums, the judgment\nshall be entered on the total of the lump sums, without further regard\nto this section.\n (c) As to any award of damages for future pain and suffering in excess\nof five hundred thousand dollars, the court shall determine the greater\nof thirty-five percent of such damages or five hundred thousand dollars\nand such amount shall be paid in a lump sum. The remaining amount of the\naward for damages for future pain and suffering shall be paid in a\nstream of payments over the period of time determined by the trier of\nfact or eight years, whichever is less. The stream of payments for\nfuture pain and suffering shall be calculated by dividing the remaining\namount of damages for future pain and suffering by the number of years\nover which such payments shall be made to determine the first year's\npayment and the payment due in each succeeding year shall be computed by\nadding four percent to the previous year's payment. The court shall\ndetermine the present value of the stream of payments by applying a\ndiscount rate to the stream of payments.\n (d) The findings of future economic and pecuniary damages except in\nwrongful death actions, shall be used to determine a stream of payments\nfor each such item of damages by applying (i) the growth rate, to the\n(ii) annual amount in current dollars, for the (iii) period of years,\nall of such items as determined by the finder of fact for each such item\nof damages. The court shall determine the present value of the stream of\npayments for each such item of damages by applying a discount rate to\nthe stream of payments. After determining the present value of the\nstream of payments for future economic and pecuniary damages,\nthirty-five percent of that present value shall be paid in a lump sum,\nand the stream of payments for future economic and pecuniary damages\nshall be adjusted accordingly by proportionately reducing each item of\nthe remaining stream of payments for future economic and pecuniary\ndamages and paying those amounts over time in the form of an annuity in\naccordance with the provisions set forth in subdivision (g) of this\nsection, subject to the adjustments and deductions specified in\nsubdivision (f) of this section.\n (e) The discount rate to be used in determining the present value of\nall streams of payments for periods of up to twenty years shall be the\nrate in effect for the ten-year United States Treasury Bond on the date\nof the verdict. As to any streams of payments for which the period of\nyears exceeds twenty years, the discount rate to be used in determining\nthe present value shall be calculated by averaging, on an annual basis,\nthe rate in effect for the ten-year United States Treasury Bond on the\ndate of the verdict for the first twenty years and two percentage points\nabove the rate in effect for the ten-year United States Treasury Bond on\nthe date of the verdict for the years after twenty years.\n (f) After making the applicable calculations set forth above:\n (1) The court shall apply any set-offs for comparative negligence and\nsettlements by deducting them proportionately from each item of the\ndamages awards, including the lump sum payments specified in\nsubdivisions (b), (c), and (d) of this section, and the present value of\nthe streams of payments specified in such subdivisions (c) and (d).\nAfter such deductions, the streams of payments specified in such\nsubdivisions (c) and (d) and their present value shall be adjusted\naccordingly.\n (2) The court shall then deduct the litigation expenses of the\nplaintiff's attorney proportionately from each remaining item of the\ndamages awards, including the remaining lump sum payments specified in\nsuch subdivisions (b), (c), and (d), and the present value of the\nremaining streams of payments specified in such subdivisions (c) and\n(d), and such expenses shall be paid in a lump sum. After said\ndeductions, the streams of payments specified in such subdivisions (c)\nand (d) and their present value shall be adjusted accordingly.\n (3) The court shall then determine the attorney's fees based upon the\nremaining damages awards, including the remaining lump sum payments\nspecified in such subdivisions (b), (c), and (d), and the present value\nof the remaining streams of payments specified in such subdivisions (c)\nand (d). The attorney's fees shall be deducted proportionately from each\nitem of the remaining damages awards, including the remaining lump sum\npayments specified in such subdivisions (b), (c), and (d), and the\npresent value of the remaining streams of payments specified in such\nsubdivisions (c) and (d), and such fees shall be paid in a lump sum.\nAfter said deductions, the stream of payments specified in such\nsubdivisions (c) and (d) and their present value shall be adjusted\naccordingly.\n (4) Any liens which are not the subject of a separate award by the\nfinder of fact shall then be deducted proportionately from each item of\nthe remaining damages awards, including the remaining lump sum payments\nspecified in such subdivisions (b), (c), and (d), and the present value\nof the remaining streams of payments specified in such subdivisions (c)\nand (d), and such liens shall be paid in a lump sum. After said\ndeductions, the stream of payments specified in such subdivisions (c)\nand (d) and their present value shall be adjusted accordingly.\n (g) The defendants and their insurance carriers shall be required to\noffer and to guarantee the purchase and payment of an annuity contract\nto make annual payments in equal monthly installments of the remaining\nstreams of payments specified in such subdivisions (c) and (d), after\nmaking the deductions and adjustments prescribed in subdivision (f) of\nthis section. The annuity contract shall provide that the payments shall\nrun from the date of the verdict (unless some other date is specified in\nthe verdict) for the period of years determined by the finder of fact\n(except the stream of payments for future pain and suffering, which\nshall not exceed eight years) or the life of the plaintiff, whichever is\nshorter, except that:\n (1) awards for lost earnings shall be paid for the full term of the\naward determined by the finder of fact; and\n (2) awards for any item of economic or pecuniary damages as to which\nthe finder of fact found that the loss or item of damage is permanent,\nthe payments for that item shall continue to run for the entire life of\nthe plaintiff, increasing each year beyond the period of years\ndetermined by the finder of fact at the same growth rate as determined\nby the finder of fact.\n (h) The judgment shall be entered on the lump sum payments and the\npresent value of the streams of payments required to be made by the\ndefendants under this section.\n