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Equitable Distribution in Medical Malpractice Settlements. In re Delmoro, 48 Misc. 3d 628, 11 N.Y.S.3d 439 (N.Y. Surr. Ct. 2015)


In a medical malpractice case where the patient dies, both wrongful death and conscious pain and suffering claims are relevant and often pursued simultaneously. The wrongful death claim addresses the long-term impact on the surviving family members, providing them with financial compensation for their loss. Meanwhile, the conscious pain and suffering claim focuses on the decedent’s experience, compensating for the distress and pain endured before death. By pursuing both types of claims, the decedent’s estate and family can seek full compensation for the broad spectrum of losses and suffering resulting from the medical malpractice.

In In re Delmoro, the New York Surrogate’s Court addressed the distribution of proceeds from a wrongful death settlement. The case involved the estate of Ronald A. Delmoro, who passed away in 2009 due to medical malpractice. The court’s decision highlighted the complexities in applying the Kaiser formula, a standard method for distributing wrongful death proceeds, and emphasized the need for equitable considerations in such matters.

The Kaiser formula, established in Matter of Kaiser, 198 Misc. 582, 100 N.Y.S.2d 218 (1950), is a method used in wrongful death cases to allocate proceeds among a decedent’s surviving spouse and children. It calculates each distributee’s share based on their years of anticipated dependency. The formula’s denominator is the sum of these years for all eligible distributees, while the numerator for each distributee is their individual years of anticipated dependency. This fraction determines the proportion of the settlement they receive. The formula aims to simplify distribution but may not always yield equitable results, as it doesn’t consider each distributee’s unique circumstances.

Background Facts
Ronald A. Delmoro died on August 16, 2009, allegedly due to medical malpractice. He was survived by his wife, Deena Delmoro, and four children, two of whom were under the age of 21 at the time of his death. Deena Delmoro, as the executrix of the estate, initiated a medical malpractice and wrongful death action against several defendants, resulting in a proposed settlement of $2.45 million.

The main issue before the court was how to distribute the wrongful death proceeds. The petitioner sought approval to settle the action and allocate the proceeds according to the Kaiser formula. However, the court had to determine whether applying this formula would result in an equitable distribution, considering the specific circumstances of the case.

The court authorized the settlement of the medical malpractice and wrongful death action for $2.45 million. It allocated the proceeds with 81.63% designated for wrongful death and 18.37% for conscious pain and suffering. However, the court denied the application of the Kaiser formula for distributing the wrongful death proceeds, finding it inequitable in this instance.

The Kaiser formula typically calculates each distributee’s share based on the years of anticipated dependency. In this case, the formula would have resulted in a significant disparity between the amounts allocated to Ronald Delmoro’s two youngest children, Stephen and Daniel, who were both over 21 at the time of the decision. The court noted that this rigid application would be inequitable, as both children were similarly situated in life.

Instead, the court considered the factors such as the relationship between the decedent and the distributees, their condition in life, and their pecuniary losses. The court referenced the case of Matter of Acquafredda, 189 A.D.2d 504, 596 N.Y.S.2d 839 (N.Y. App. Div. 1993), which established that the Kaiser formula should not be applied automatically and that equitable adjustments were sometimes necessary.

Applying these principles, the court decided to distribute the wrongful death proceeds as follows: Deena Delmoro would receive $1,381,624.27, while Stephen and Daniel would each receive $138,195.59. This decision aimed to reflect a more equitable distribution based on the pecuniary losses suffered by each distributee.

Navigating the complexities of wrongful death and medical malpractice cases requires experienced legal counsel. If you or a loved one has been affected by medical malpractice, it is important to seek the guidance of a knowledgeable New York medical malpractice lawyer who can help ensure that your case is handled with care and expertise. Contact Stephen Bilkis & Associates  to discuss your case and explore your legal options.

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