New York Laws
Article 50-A - Periodic Payment of Judgments in Medical and Dental Malpractice Actions
5031 - Basis for Determining Judgment to Be Entered.

(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.

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