In this proceeding by the administrator of the decedent's estate to judicially account for the sum of $490,000 arising from wrongful death and personal injury causes of action settled in the Supreme Court, Bronx County (Roman, J.), the Department of Social Services (the Department) objects to the petitioner's request to allocate only 10% of the recovery to the personal injury cause of action. The Department contends that a sufficient amount of the recovery should be allocated to the personal injury action in order to satisfy its claim in the amount of $176,426.98, consisting of $147,217.31 in Medicaid assistance furnished to the decedent and $29,209.67 paid to the decedent in public assistance benefits.

After a conference with the court, the parties stipulated and an interim order was entered providing for: (1) the payment of counsel fees and disbursements; (2) the holding of the entire amount of the Department's claim in escrow by the petitioner's counsel pending further order; (3) the distribution of the balance of the settlement proceeds to the decedent's distributees; and (4) the submission of the allocation issue on the papers, without prejudice to the right of any party after the allocation issue is determined to request a determination as to whether the Department's claim is limited under Arkansas Dept. of Health and Human Serv. v Ahlborn (547 US 268 [2006]).

The decedent died on August 16, 2001 at the age of 54, allegedly as a result of medical malpractice. She was survived by the petitioner and two other adult sons. The following is not in dispute: (1) from July 13, 2001 through August 15, 2001, the decedent received Medicaid assistance for medical services specifically related to her injuries in the sum of $147,217.31; (2) the decedent resided with two of her three sons; (3) it is alleged in the underlying cause of action that the defendant failed to properly diagnose and treat the decedent's underlying medical condition, an autoimmune disease, and the decedent's death could have been prevented by the prompt administration of corticosteroids; and (4) only the portion of the recovery allocated to personal injury is available to satisfy the Department's claim because the wrongful death recovery is solely for the benefit of the decedent's distributees to compensate them for their pecuniary injuries (see EPTL 5-4.3; George v Mt. Sinai Hosp., 47 NY2d 170, 176 [1979]; Matter of Ramirez, 14 Misc 3d 480, 483 [2006]), while the personal injury recovery "accrues to the decedent's estate" (Ratka v St. Francis Hosp., 44 NY2d 604, 609 [1978]) and, accordingly, is [*2]subject to the claims of the decedent's creditors.

Both parties primarily rely upon the bill of particulars in the underlying action and the hospital records from Bronx Lebanon Hospital and Montefiore Medical Center for the period July 12, 2001 through August 16, 2001. In support of its contention that the net proceeds of the settlement allocated to personal injury should be more than enough to satisfy its claim, the Department relies primarily upon the allegation in the bill of particulars that $200,000 was paid for the decedent's medical expenses. Specifically, the Department contends that the cost of the medical procedures performed upon the decedent is a sum certain, which includes its $147,217.31 claim for Medicaid benefits furnished to the decedent, while the value of the services that the decedent provided to the adult distributees is more nebulous. Consequently, the Department asserts that the court should determine that all of the medical expenses were recovered in the $490,000 settlement and the balance of the settlement should be attributed to either the decedent's pain and suffering or the pecuniary losses of the decedent's distributees. Furthermore, and notwithstanding its concession that the decedent's pain and suffering was "limited," the Department notes that the invasive medical procedures performed upon the decedent and the reported instances of at least some minimal pain or discomfort in the hospital records dictate that at least some portion of the recovery should be allocated to conscious pain and suffering.

The administrator contends that the lion's share of the proceeds should be allocated to wrongful death. He notes that the hospital records reflect that for the overwhelming majority of the time of the decedent's hospitalization, there was no indication that she suffered from any pain. The administrator asserts the allegation in the bill of particulars of $7.5 million in pecuniary damages suffered by the decedent's sons supports his contention that 90% of the settlement recovery should be allocated to the wrongful death action. In essence, the administrator argues that the case settled for only $490,000 because he was concerned that liability could not be established, and not because of any concerns about the sufficiency of the proof that the decedent's sons suffered very significant pecuniary losses as a result of their mother's early demise. The bill of particulars alleges that the decedent provided "services, guidance, moral, spiritual and intellectual leadership, love, affection, nurturing, parental guidance, wisdom and all other aspects of such loss recognized by law."

There is no mathematical formula that explains the result of any settlement. Theoretically, if a plaintiff and defendant agree that the plaintiff has a 50% chance to prevail at trial and the reasonable range of recoverable damages is between $75,000 and $125,000, the case should settle for approximately $50,000. In settlements where the allocation of damages makes a practical difference and there are liability issues, the law does not assume that fixed medical expenditures are entitled to any greater weight than damages which fall within a range, such as pain and suffering or loss of guidance and services. As a result, when it makes a difference whether settlement proceeds are attributed to medical expenses or other elements of a personal injury recovery, all damages are reduced pro rata to reflect the difference between the recovery that might reasonably be expected absent any liability or other issues and the amount of the settlement (see Ahlborn, 547 US at 268). There does not appear to be any reason why the same principle should not be utilized in making an allocation between wrongful death and personal injury.

Although the parties understandably prefer to have the issue determined on the papers [*3]submitted in the underlying action and the hospital records, rather than engaging in the equivalent of a trial which the settlement sought to avoid, the bill of particulars cannot be considered as gospel in making the required allocation. Even though the plaintiff alleges therein that the decedent incurred "approximately" $200,000 for hospital and physician services, it appears that the $147,217.31 paid by the Department was the only payment made for such services. Similarly, the pecuniary injuries claimed therein, totaling $7.5 million, greatly exceeds the amount that reasonably could be expected to be recovered for such injuries, considering that the decedent was not employed and it appears that her health problems limited some of the services that she could perform for her adult children. Nonetheless, and even assuming, arguendo, that if liability had been established, there would have been a recovery in the personal injury action for the "limited" pain and suffering in addition to the recovery for medical expenses, the court finds it reasonable to conclude that almost twice as much of the recovery would have been allocated to the wrongful death action. The decedent was only 54 years of age when she died. Thus, her children lost not only her continued guidance for many years but also were deprived of those household services she provided in the apartment that she shared with two of them. Based upon the limited record and considering the damages that could reasonably be expected to be recovered under both causes of action absent any liability or other issues, including all of the elements of pecuniary loss where the decedent is not a wage earner, the court finds that the settlement recovery should be allocated 64% to the wrongful death action and 36% to the personal injury action (see Gonzalez v NY City Hous. Auth., 77 NY2d 663,669 [1991], citing Gross v Abraham, 306 NY 525, 529-531; McIntyre v New York Cent. R.R. Co., 37 NY 287, 295-296; Tiley v Hudson Riv. R.R. Co., 20 NY 252; see also Ramos v La Montana Moving & Stor., Inc., 247 AD2d 333 [1998]).

Based upon the above allocation, this decision constitutes the order of the court determining that the sum of $122,997.96 is the amount of the settlement to be allocated to the personal injury action after counsel fees and disbursements are deducted from the $490,000 settlement (.36 of $341,661). In the event that no party appeals this determination or requests a determination with respect to whether the amount payable to the Department from these proceeds should be further reduced pursuant to Ahlborn (547 US at 268), a decree may be settled directing that $122,997.96 of the escrow fund be paid to the Department, with the balance to be paid in equal shares to the decedent's three sons. In the event that any party requests an Ahlborn determination, in accordance with the terms of the "interim decree" entered herein, such a request shall be made within a "period of 30 days after final determination of the allocation issue." Of course, the fact that the parties stipulated that this issue would be held in abeyance does not constitute a determination by this court concerning the Department's right to recover from the estate of a recipient of public assistance for the assistance provided during the preceding ten years (see Social Services Law § 104). The Chief Clerk shall mail a copy of this decision and order to respective counsel.

Proceed accordingly.

Surrogate