The unspeakably tragic case of Rory Staunton will, in my opinion, soon demonstrate both the positive and negative aspects of New York’s medical malpractice laws. Rory was a lively 12 year-old boy, who cut his arm while diving for a basketball on a gym floor. Within three days, he was dead from septic shock, after the doctors and staff at NYU Medical Center failed to appreciate the significance of the lab work that should have told them that Rory was in serious trouble as a result of bacteria that infected his wound. Septic shock occurs when bacteria causes an infection that spirals out of control causing the body to respond in an overwhelming manner and resulting in multiple organ dysfunction and often death. You can read the story at New York Times.

Rory’s parents are taking legal action. In 2010, after a difficult struggle, consumer groups in New York successfully defeated efforts led by the Governor and hospitals, to limit victims’ recoveries in medical malpractice cases, with respect to pain and suffering. When the Stauntons go to court and ask that Rory’s estate be compensated for the conscious pain and suffering that he endured before he passed away, they will not be limited by an arbitrary monetary cap enacted by a group of politicians who presumably never suffered the way that Rory did. On the other hand, New York law will severely limit the Stanton’s compensation in other significant ways. Most importantly, New York law is amongst a minority of four states that do not recognize a family’s right to compensation for the loss of the companionship, affection and society of a loved one who died as a result of the negligent act of another. This rule places greater value on property than upon life and is particularly cruel when the victim is young or elderly because the death of an elderly person or a child often does not result in significant monetary losses. Families such as the Stauntons may seek recovery for the financial losses they may incur as a result of the loss of a loved one and on account of any conscious pain and suffering experienced by the victim prior to death. But until the New York wrongful laws are brought into the 21st Century, those families will be denied justice for the loss that will remain with them forever: the loss of their loved one’s companionship, affection and society.