The interaction of CPLR 4111 and CPLR 5031 controls the calculation of a structured judgment in medical, dental, and podiatric malpractice actions. CPLR 4111, titled “General and Special Verdicts and Written Interrogatories,” governs the jury's verdict, more specifically the amount and category of damages a jury can award. CPLR 5031, titled “Basis for Determining Judgment to be Entered,” instructs the court how to determine and calculate the final award amount and payment scheme using the jury's verdict. This calculation is done post verdict. This article will discuss the interplay between these two rules in light of the 2003 amendment to CPLR 4111(d) and its effect on the court's role in calculating the appropriate judgment to enter upon a medical malpractice verdict.

Pre-2003 Amendment

Prior to the amendment of CPLR 4111(d) in 2003, the practical effect of CPLR 4111(d) and CPLR 5031 “ha[d] been characterized by some as requiring a defendant who pays a judgment periodically, to pay twice for inflation.” (State of New York Dep. of Health Mem. in Support, Bill Jacket, L 2003, Ch. 86). The provisions had “deservedly been labeled 'circuitous,' 'vexing,' as 'every judge's nightmare,' and '[a]t best…ambiguous….'” (Bryant v. New York City Health & Hosps., 93 N.Y.2d 592, 600-01 [1999]). The statues' flaws were illuminated by the Court of Appeals' decision in Desiderio v. Ochs. (See 100 N.Y.2d 159 [2003]).

In Desiderio, plaintiff Samuel Desiderio, through his mother, sued for medical malpractice that was the result of a surgery to revise a shunt used to treat hydrocephalus, a condition Desiderio suffered from. The shunt failed, resulting in his needing to breathe through a permanent tracheostomy and eat through a gastronomy tube. Additionally, the injury resulted in the reactivation of a seizure disorder, which caused him to stop breathing to the point where he had to be resuscitated. The jury returned a verdict in Desiderio's's favor as follows: $1.5 million in past pain and suffering, $3 million for future pain and suffering, $824,900 for equipment, $1,436,590 for medication, $1,619,787 for supplies, $917,016 for medical care, $40 million for nursing care, and $500,000 for therapy after the age of 21. The jury determined that the compensation period for all future damages would be 55 years considering Samuel's young age. It included a growth rate of 3.335 percent in its award.

Subsequently, the jury's award of $50 million transformed into an approximately $140 million award due to the interaction of CPLR 4111(d) and 5031. (Id.) The large discrepancy between the jury's award and the award calculated by the court led the Court of Appeals to unanimously urge “the Legislature to revisit the structured judgment statutes to consider whether these important provisions serve their intended purpose[s] in a coherent and equitable way.” (Id., at 173).¹ Without an amendment to either CPLR 4111(d) or article 50—the court stressed that it would “be bound by the record and the responsibility to implement clear statutory directives,” likely resulting in further, troubling incongruities. (Id., at 173.)