2023 New York Laws › CVP - Civil Practice Law and Rules › Article 50-A - Periodic Payment of Judgments in Medical and Dental Malpractice Actions › 5031 - Basis for Determining Judgment to Be Entered.

§  5031.  Basis  for  determining  judgment to be entered. In order to
determine what judgment is to be entered on a verdict in  an  action  to
recover  damages  for  medical,  dental,  or  podiatric  malpractice, or
damages for wrongful death as a result of medical, dental, or  podiatric
malpractice, the court shall proceed as follows:
(a)  The  court shall apply to the findings of past and future damages
any applicable rules of law regarding additurs and/or  remittiturs,  and
adjust the verdict accordingly.
(b)  Awards  for  all  past  damages,  all  damages for future loss of
services, all damages for future loss  of  consortium,  all  damages  in
wrongful  death  actions,  and  damages for future pain and suffering of
five hundred thousand dollars or less shall be paid in a  lump  sum.  In
any  case in which all damages are to be paid in lump sums, the judgment
shall be entered on the total of the lump sums, without  further  regard
to this section.
(c) As to any award of damages for future pain and suffering in excess
of  five hundred thousand dollars, the court shall determine the greater
of thirty-five percent of such damages or five hundred thousand  dollars
and such amount shall be paid in a lump sum. The remaining amount of the
award  for  damages  for  future  pain  and suffering shall be paid in a
stream of payments over the period of time determined by  the  trier  of
fact  or  eight  years,  whichever  is  less. The stream of payments for
future pain and suffering shall be calculated by dividing the  remaining
amount  of  damages for future pain and suffering by the number of years
over which such payments shall be made to  determine  the  first  year's
payment and the payment due in each succeeding year shall be computed by
adding  four  percent  to  the  previous year's payment. The court shall
determine the present value of the stream  of  payments  by  applying  a
discount rate to the stream of payments.
(d)  The  findings  of future economic and pecuniary damages except in
wrongful death actions, shall be used to determine a stream of  payments
for  each  such  item of damages by applying (i) the growth rate, to the
(ii) annual amount in current dollars, for the (iii)  period  of  years,
all of such items as determined by the finder of fact for each such item
of damages. The court shall determine the present value of the stream of
payments  for  each  such item of damages by applying a discount rate to
the stream of payments. After  determining  the  present  value  of  the
stream   of   payments   for  future  economic  and  pecuniary  damages,
thirty-five percent of that present value shall be paid in a  lump  sum,
and  the  stream  of  payments for future economic and pecuniary damages
shall be adjusted accordingly by proportionately reducing each  item  of
the  remaining  stream  of  payments  for  future economic and pecuniary
damages and paying those amounts over time in the form of an annuity  in
accordance  with  the  provisions  set  forth in subdivision (g) of this
section,  subject  to  the  adjustments  and  deductions  specified   in
subdivision (f) of this section.
(e)  The  discount rate to be used in determining the present value of
all streams of payments for periods of up to twenty years shall  be  the
rate  in effect for the ten-year United States Treasury Bond on the date
of the verdict. As to any streams of payments for which  the  period  of
years  exceeds twenty years, the discount rate to be used in determining
the present value shall be calculated by averaging, on an annual  basis,
the  rate  in effect for the ten-year United States Treasury Bond on the
date of the verdict for the first twenty years and two percentage points
above the rate in effect for the ten-year United States Treasury Bond on
the date of the verdict for the years after twenty years.
(f) After making the applicable calculations set forth above:
(1) The court shall apply any set-offs for comparative negligence  and
settlements  by  deducting  them  proportionately  from each item of the
damages  awards,  including  the  lump   sum   payments   specified   in
subdivisions (b), (c), and (d) of this section, and the present value of
the  streams  of  payments  specified  in such subdivisions (c) and (d).
After such  deductions,  the  streams  of  payments  specified  in  such
subdivisions  (c)  and  (d)  and  their  present value shall be adjusted
accordingly.
(2) The court  shall  then  deduct  the  litigation  expenses  of  the
plaintiff's  attorney  proportionately  from  each remaining item of the
damages awards, including the remaining lump sum payments  specified  in
such  subdivisions  (b),  (c),  and  (d),  and  the present value of the
remaining streams of payments specified in  such  subdivisions  (c)  and
(d),  and  such  expenses  shall  be  paid  in  a  lump  sum. After said
deductions, the streams of payments specified in such  subdivisions  (c)
and (d) and their present value shall be adjusted accordingly.
(3)  The court shall then determine the attorney's fees based upon the
remaining damages awards, including  the  remaining  lump  sum  payments
specified  in such subdivisions (b), (c), and (d), and the present value
of the remaining streams of payments specified in such subdivisions  (c)
and (d). The attorney's fees shall be deducted proportionately from each
item  of  the remaining damages awards, including the remaining lump sum
payments specified in such subdivisions  (b),  (c),  and  (d),  and  the
present  value  of  the  remaining streams of payments specified in such
subdivisions (c) and (d), and such fees shall be paid  in  a  lump  sum.
After  said  deductions,  the  stream  of  payments  specified  in  such
subdivisions (c) and (d) and  their  present  value  shall  be  adjusted
accordingly.
(4)  Any  liens  which  are not the subject of a separate award by the
finder of fact shall then be deducted proportionately from each item  of
the  remaining damages awards, including the remaining lump sum payments
specified in such subdivisions (b), (c), and (d), and the present  value
of  the remaining streams of payments specified in such subdivisions (c)
and (d), and such liens  shall  be  paid  in  a  lump  sum.  After  said
deductions,  the  stream  of payments specified in such subdivisions (c)
and (d) and their present value shall be adjusted accordingly.
(g) The defendants and their insurance carriers shall be  required  to
offer  and  to guarantee the purchase and payment of an annuity contract
to make annual payments in equal monthly installments of  the  remaining
streams  of  payments  specified in such subdivisions (c) and (d), after
making the deductions and adjustments prescribed in subdivision  (f)  of
this section. The annuity contract shall provide that the payments shall
run from the date of the verdict (unless some other date is specified in
the  verdict)  for  the period of years determined by the finder of fact
(except the stream of payments for  future  pain  and  suffering,  which
shall not exceed eight years) or the life of the plaintiff, whichever is
shorter, except that:
(1)  awards  for  lost earnings shall be paid for the full term of the
award determined by the finder of fact; and
(2) awards for any item of economic or pecuniary damages as  to  which
the  finder  of fact found that the loss or item of damage is permanent,
the payments for that item shall continue to run for the entire life  of
the   plaintiff,  increasing  each  year  beyond  the  period  of  years
determined by the finder of fact at the same growth rate  as  determined
by the finder of fact.
(h)  The  judgment  shall  be entered on the lump sum payments and the
present value of the streams of payments required  to  be  made  by  the
defendants under this section.