The limits of New York Court of Claims Judge Renee Forgensi Minarik’s authority were called into question last month in the hospital negligence lawsuit Thurston v. State. Minarik was forced to make a decision against her conscience but in accordance with an ancient law, the 1846 wrongful death statute that ignores the grief of loved ones in determining the damages in a wrongful death case. Justifying her decision, Minarik explained, “bad laws make hard cases.”Thurston v. State pitted the family of Cheryl Thurston, a physical and mentally handicapped woman who drowned in a bathtub at the state-run Office for People with Development Disabilities Pittsford facility as a result of her caretaker’s negligence, against the State of New York.Cheryl had a condition that caused her to suffer from frequent seizures, and as a result she required constant supervision from the facility’s staff. On August 30th, 2008, Cheryl was left alone in her bathtub, where she experienced a seizure and then drowned before she was able to regain consciousness.The way that the present wrongful death statue is worded, because Cheryl was not earning income at the time of her death and because she was not conscious of her suffering, her case is not worth any pecuniary damages. Judge Minarik was forced by the law to dismiss Cheryl Thurston’s case, in the face of everything she knew to be just.”It is repugnant to the Court to have to enforce this law which places no intrinsic value on human life,” she wrote in her decision.Minarik’s authority would not allow her to award damages to the Thurston family or to punish the negligent facility for their flagrant error, but in her decision she acknowledged the need for significant legislative reform.Minarik’s sentiment is one that the New York State Trial Lawyers Association is in agreement with. Earlier this year they proposed an update to the 1846 wrongful death statue, which, they point out, predates the American Civil War and the abolition of slavery. Their proposal, dubbed Zachary’s Law after a two-year-old boy who was killed by the negligence of a hospital that was ultimately not held financially responsible, is an attempt to realign the law with modern ideas about the value of human life.Grief is real, and like physical pain and suffering it should have value in court. The negligent hospital that treated Zachary Storms understood the significance of grief. That’s why they paid for grief counseling for each of the hospital staff that was present for Zachary’s death. His parents, however, who stood by him and even held him down as instructed while doctors poured an exorbitant amount of activated charcoal solution down his throat, filling his stomach and lungs and eventually killing him, were not qualified to receive compensation for the grief they suffered and are still suffering.Because the present wrongful death statute awards damages based primarily on expected future income, it is highly biased towards high-income earners. The families of wealthy men and women are compensated more fully than middle and working class families. The lives of children and the elderly on the other hand, are nearly worthless in the eyes of the court because they are not earning income.This is a law that needs to be reformed, for Cheryl Thurston, For Zachary Storms, and for all the future victims of negligent institutions with little to no income.Sources: New York Law Journal, “Judge Forced to Make ‘Repugnant’ Decision,” June 4, 2013.New York State Trial Lawyer’s Association, “Shouldn’t New York’s grieving families be compesnsated for their profound loss?” 2013.