Special attention should be directed toward the early identification of a decedent’s distributees in defending cases in which the malpractice of the defendant is claimed to have caused the death of the patient. Recall that the wrongful death claim is a creature of statute governed by EPTL Article 5, which defines the distributees for whom a death claim may be asserted. See Ratka v. St. Francis Hospital, 44 NY2d 604 (1978). The identity of the decedent’s distributees is fixed and ascertainable at the time of death, and the defense of the malpractice death case should not ignore the identification of the distributees in the course of discovery and trial preparation. Wrongful death damages have been defined in New York since 1847 as the pecuniary loss of the distributees [see Liff v. Schildkraut, 49 NY2d 622 (1980)]. However, there continue to be issues relating to the identity of distributees addressed for the first time on post-trial motion and appeal. This is usually because a lump sum wrongful death verdict has been rendered on a record that includes evidence of the circumstances of household members of the decedent who are not distributees. [Cf. Perez v. St. Vincent’s Hospital, 60 AD2d 663 (2d Dept. 2009)].

The oft suggested practice is to have trial courts direct the jury to determine a single total amount of wrongful death damages, with proper allocation of the damages to the distributees left to the Surrogate’s Court [see Carter v. NYCHHC, 47 AD3d 661 (2d Dept. 2008)]. In today’s world, not every “family” member is a true distributee, so the available discovery devices should be employed to identify those entitled to compensation before evidence is taken at trial. Settling the issue as to who is truly a distributee in advance of trial is the efficient and practical approach.