2006 New York Code - 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.