## Facts

- Joseph Liff allegedly died from medical malpractice by Dr. Herman Schildkrout.
- The estate sued for (1) the decedent’s pre-death pain and suffering and (2) wrongful death damages.
- The estate sought leave to amend to add a separate claim for the widow’s loss of consortium, or to treat existing pleadings as including that claim.
- The trial court allowed a consortium claim only for the period of the decedent’s conscious pain and suffering (pre-death), not for post-death loss.
- The Appellate Division affirmed, and the plaintiffs appealed on a certified question.
- A companion case (Grant v. Guidotti) involved a husband seeking loss of consortium based on his wife’s death during medical care, raising the same legal question.

## Issues

1. Whether a surviving spouse may bring an independent common-law action for loss of consortium caused by the other spouse’s death.
2. Whether loss of consortium may be recovered as an element of damages in a statutory wrongful death action.

## Decision

- The Court of Appeals affirmed the Appellate Division’s order in Liff.
- A surviving spouse may not maintain a common-law cause of action for loss of consortium attributable to the spouse’s death.
- Loss of consortium is not recoverable as an item of damages in a wrongful death action, which is limited by statute to pecuniary injuries to distributees.
- The court left undisturbed the allowance of consortium damages limited to the pre-death period tied to the decedent’s personal injury (conscious pain and suffering) claim.
- In the companion case, the court likewise rejected the husband’s consortium claim premised on death.

## Legal Principles

- In New York, claims for damages resulting from death are governed exclusively by the wrongful death statute; no common-law cause of action arises from death.
- Wrongful death damages under EPTL 5-4.3 are confined to “fair and just compensation for the pecuniary injuries” suffered by distributees.
- Traditional consortium harms (e.g., loss of companionship and marital relations) are non-pecuniary and therefore not compensable under the wrongful death statute.
- A spouse’s consortium claim may exist only as a derivative component of a living spouse’s personal injury claim and is limited to losses sustained before death.

## Conclusion

The Court of Appeals held that New York law provides no post-death recovery for spousal loss of consortium, either as an independent common-law claim or as an element of wrongful death damages; wrongful death remedies are statutory and limited to pecuniary injuries, while consortium is confined to the pre-death period connected to a personal injury claim.


Liff v. Schildkrout, 49 N.Y.2d 622 (N.Y. 1980)