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As for New York law and where New Yorkers are until the Grieving Families Act is signed:
The odds of injury or death due to medical malpractice, together with the culture of cover-ups in the healthcare industry, are frightening. This site published the lowest estimates but according to major publications, it is much worse. These links are encouraging about the future of making those odds better, but that will take time.
Here is Where New Yorkers Stand Now:
When a person dies as a result of another party's accidental or intentional act, the deceased person's estate could be entitled to file a wrongful death lawsuit. In this article, we'll examine the laws that apply to wrongful death claims in New York, including how the state defines a "wrongful death," who may file a wrongful death lawsuit, the damages available if a wrongful death case succeeds, and the time limits for getting the case started.
How Is "Wrongful Death" Defined in New York?
New York law defines a "wrongful death" as one caused by "a wrongful act, neglect or default," of a kind that the deceased person could have pursued with a personal injury lawsuit had he or she lived. (N.Y. Est. Powers & Trusts Law § 5-4.1 (2021).) Unlike in other types of personal injury lawsuits, in a wrongful death case the injured person is no longer able to bring the claim to court; instead, another party must bring it on the deceased person's behalf.
As with other kinds of personal injury cases, many different types of events can qualify as a "wrongful act, neglect or default," including:
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negligence-based incidents (such as car accidents)
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medical malpractice, or
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intentional acts (including crimes).
Note: In Endresz v. Friedberg, the New York Court of Appeals held that New York law does not recognize wrongful death claims when a fetus dies before birth, even if the death was caused by the wrongful act of another party. (24 N.Y.2d 478 (1969).)
Who Is Eligible to File a New York Wrongful Death Lawsuit?
New York law requires that the personal representative (sometimes called the "executor") of the deceased person's estate file the wrongful death lawsuit. Unlike many other states, New York does not allow a family member to bring a wrongful death claim to court unless that family member is also the personal representative of the deceased person's estate.
Here are some considerations if the malpractice or any other cause results in a worongfull death.
WHAT MAKES SOMEONE’S DEATH A WRONGFUL DEATH?
Put simply, a wrongful death can be defined as a fatal injury resulting from someone else’s wrongful act, negligence, neglect, carelessness, or unskillfulness.
When it comes to civil law, a wrongful death cause of action refers to a claim or lawsuit brought against a business, employer, and/or individual whose negligence caused or contributed to someone’s death.
While not every untimely death can be attributed to someone else’s negligence, it’s always important to have someone look into the facts of any fatal accident. What may seem like a freak on-the-job “accident” may have been caused by faulty equipment, inadequate training by the employer, or even a failure to provide personal protective equipment.
When Should Medical Malpractice Be Criminally Culpable?
To bring a civil personal injury claim, four elements must be met: duty, breach, damage, and causation. Criminal malpractice adds a fifth element, the physician’s state of mind, also known as “mens rea.” This state of mind ranges from inattention or reckless, to premeditation. Determining the physician’s state of mind can depends on whether the physician had a depraved indifference to human life, lacked a timely response, recklessly endangered the patient, or performed risky therapies. A physician may face manslaughter or even a murder charge, especially when a patient suffers a lethal injury, and results in death under a physician’s care.
Lowering the Criminal Culpability Bar?
Usually, the issue with distinguishing the level of charge is not in determining if the physician committed first or second-degree murder, but whether the physician’s negligent conduct is of a civil or criminal nature. To cross from civil to criminal negligence, there must be a gross deviation from the standard of care and the physician must also have had a criminally culpable state of mind. This degree of negligent is required to be beyond a mere civil negligence or a mere “breach.” The standard is measured with the ordinary degree of knowledge and skill commonly possessed by physicians in the same field of practice. This standard draws the line between criminal medical malpractice and civil medical liability. This also means that although negligent conduct may constitute a breach of duty of care, it is not necessarily a crime unless the physician takes an unjustifiable risk of causing harm to the patient. If the risk taking is objectively unjustifiable and the risk was substantial, the physician is then criminally negligent.
