William J. Giacomo – Supreme Court Justice – Westchester..Rec’d 0606 (Courtesy photo)
The interaction of CPLR 4111 and CPLR 5031 controls the calculation of a structured judgment in medical, dental, and podiatric malpractice actions. CPLR 4111, titled “General and Special Verdicts and Written Interrogatories,” governs the jury’s verdict, more specifically the amount and category of damages a jury can award. CPLR 5031, titled “Basis for Determining Judgment to be Entered,” instructs the court how to determine and calculate the final award amount and payment scheme using the jury’s verdict. This calculation is done post verdict. This article will discuss the interplay between these two rules in light of the 2003 amendment to CPLR 4111(d) and its effect on the court’s role in calculating the appropriate judgment to enter upon a medical malpractice verdict.
Prior to the amendment of CPLR 4111(d) in 2003, the practical effect of CPLR 4111(d) and CPLR 5031 “ha[d] been characterized by some as requiring a defendant who pays a judgment periodically, to pay twice for inflation.” (State of New York Dep. of Health Mem. in Support, Bill Jacket, L 2003, Ch. 86). The provisions had “deservedly been labeled ‘circuitous,’ ‘vexing,’ as ‘every judge’s nightmare,’ and ‘[a]t best…ambiguous….’” (Bryant v. New York City Health & Hosps., 93 N.Y.2d 592, 600-01 ). The statues’ flaws were illuminated by the Court of Appeals’ decision in Desiderio v. Ochs. (See 100 N.Y.2d 159 ).
In Desiderio, plaintiff Samuel Desiderio, through his mother, sued for medical malpractice that was the result of a surgery to revise a shunt used to treat hydrocephalus, a condition Desiderio suffered from. The shunt failed, resulting in his needing to breathe through a permanent tracheostomy and eat through a gastronomy tube. Additionally, the injury resulted in the reactivation of a seizure disorder, which caused him to stop breathing to the point where he had to be resuscitated. The jury returned a verdict in Desiderio’s's favor as follows: $1.5 million in past pain and suffering, $3 million for future pain and suffering, $824,900 for equipment, $1,436,590 for medication, $1,619,787 for supplies, $917,016 for medical care, $40 million for nursing care, and $500,000 for therapy after the age of 21. The jury determined that the compensation period for all future damages would be 55 years considering Samuel’s young age. It included a growth rate of 3.335 percent in its award.
Subsequently, the jury’s award of $50 million transformed into an approximately $140 million award due to the interaction of CPLR 4111(d) and 5031. (Id.) The large discrepancy between the jury’s award and the award calculated by the court led the Court of Appeals to unanimously urge “the Legislature to revisit the structured judgment statutes to consider whether these important provisions serve their intended purpose[s] in a coherent and equitable way.” (Id., at 173).1 Without an amendment to either CPLR 4111(d) or article 50—the court stressed that it would “be bound by the record and the responsibility to implement clear statutory directives,” likely resulting in further, troubling incongruities. (Id., at 173.)
An overview of the function of the pre-2003 statutes easily justifies their criticism and the calls for reform. First, CPLR 4111(d) required both that the jury make an award for the full amount of future damages, which included a growth rate, without adjusting that figure to present value, and to determine the term of years that the plaintiff will receive payments. (Desiderio, 100 N.Y.2d at 167). Next, after a lump-sum payment to the plaintiff was deducted, CPLR 5031 directed the courts to calculate the first annual payment of the annuity contract “by dividing the remaining amount of future damages by the number of years over which such payments shall be made.” (Id. at 169)
Each subsequent year’s payment was calculated by adding four percent, the growth rate, to the previous year’s payment. which is where the aforementioned double inflation occurs. (Id.) Finally, the court ended its calculation by determining the present value of the annuity contract, (Id.) CPLR5031(3) With regard to Desiderio, this calculation was carried out for a 55-year term, the jury’s proposed term for future payments, which resulted in the tremendous increase from the jury’s original award.
In an attempt to answer the Court of Appeals’ call for reform, the Legislature amended both CPLR 4111(d) and CPLR 5031 shortly after Desiderio in 2003. (See 2004 Rep of Advisory Comm. on Civ Prac at 18). The most noticeable, concrete change was eliminating the four percent additur on each successive year’s payment required by CPLR 5031, effectively eradicating the double inflation issue. (Id. at 20). However, with regard to CPLR 4111(d), which is the focus of this article, the Legislature’s alteration of the jury’s role in the process is most significant: now, except in wrongful death cases, the jury must provide (1) the annual amount of the award in current dollars, (2) the growth rate, (3) the term of years for payments, and (4) whether the damages are permanent or not, as opposed to the total amount of future earnings as previously required. (Id.) This change was reflected in an alteration of the pattern jury instruction: after 2003 the charge requires a jury to return “the amount per year in current dollars that you are awarding, the growth rate applicable for the period of years for that item of damage and whether the loss or item of damage is permanent.” See PJI 2:151(A)(2).
Some uncertainty surrounds the meaning of the phrase “annual amount of the award in current dollars” and exactly what amount the jury is supposed to find. The most logical conclusion is that the Legislature intended to have the jury make a separate finding of damages incurred in the current year only,2 thereby allowing the court to use that figure to make the necessary calculations to satisfy its obligations under CPLR 5031.
Consider This Scenario
With this as background let’s consider the following scenario. In a medical malpractice action plaintiff’s counsel calls an economist to the stand and asks the economist questions pertaining to the plaintiff’s future loss of earnings for each year for the rest of his work life. The defendant’s counsel objects claiming that the economist’s testimony is irrelevant because CPLR 4111(d) instructs the jury to return only the “annual amount in current dollars” and the growth rate, and that the court, not the jury or an economist, is to determine the payments for any future period.
Is defendant’s counsel correct? The answer depends on the result of the alleged malpractice. CPLR 4111 makes a distinction between awards for future economic loss in malpractice actions that result in death and those that do not. (See CPLR 4111; see also CPLR 5031). With regard to malpractice actions that result in wrongful death CPLR 4111 reads: “In itemizing amounts intended to compensate for future wrongful death damages…the jury shall return the total amount of damages for each such item.” (CPLR 4111(d)). Thus, if the alleged malpractice resulted in death the objection must be overruled. The economist’s testimony about future damages would be directly relevant to the jury’s determination of the “total amount of damages.” Id.
Alternatively, with regard to medical malpractice actions not involving death CPLR 4111 reads: “In itemizing amounts intended to compensate for future economic and pecuniary damages other than in wrongful death actions, the jury shall set forth as to each item of damage, (i) the annual amount in current dollars, (ii) the period of years for which such compensation is applicable and the date of commencement for that item of damage, (iii) the growth rate applicable for the period of years for the item of damage, and (iv) a finding of whether the loss or item of damage is permanent.” (Id.) Here, defense counsel’s objection has merit.
Although the economist’s testimony may not be harmful, the objection is valid—any testimony about future damages is irrelevant to the jury’s determination of “the annual amount in current dollars.” As previously mentioned, the post- 2003 amendment to CPLR 4111(d) removed from the jury any calculation with regard to future damages, leaving the entirety of the CPLR 5031 calculation to the court. Thus, the jury does not need testimony regarding the plaintiff’s loss of earnings for any future period to make its determination.
After the 2003 amendment to CPLR 4111 the most logical way to interpret the Legislatures words, “annual amount in current dollars,” is that they meant for the jury to return only the plaintiff’s loss of earnings (which presumably would include loss of any benefits etc.) for the current year, instead of the previously requested “total amount” of damages. Thus, in medical malpractice cases, other than those involving wrongful death, economists should only testify regarding the plaintiff’s loss of earnings for the current year. The court, not an economist or a jury, determines the payments to the plaintiff for any future period. Although testimony regarding loss of earnings in future years may not be harmful, it is unnecessary and should not be allowed.
1. For awards of large magnitude, it was clear that the pre-2003 methodology was ineffective with respect to attaining at least one of the legislature’s two intended purposes for the statutes, to moderate the cost of medical malpractice premiums. Bryant v. New York City Health & Hosps., 93 N.Y.2d 592, 600 .
2. It would also, of course, be asked to make an award for past, pre-verdict, loss of earnings.