Judge: FICA Not Deductible From Medmal Award

, New York Law Journal

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A judge refused to reduce a loss-of-earnings award in a medical malpractice case, rejecting the defendants' claim that the Federal Insurance Contributions Acts (FICA) is a deductible tax.

Ulster County Supreme Court Justice James Gilpatric (See Profile) ruled that FICA is not a federal, state or local income tax that could be subtracted from a loss-of-earnings malpractice award under CPLR 4546(3).

"Had the Legislature wanted loss of earnings or wages awards to be further reduced by FICA, it could have added that language to CPLR 4546," Gilpatric ruled from Kingston in Boyer v. Kamthan, 10-3862. "Thus, simply stated, CPLR 4546 only allows an award for loss of wages/earnings to be reduced by personal income tax and FICA is not strictly such a tax."

Mark Boyer's claim concerned alleged delays in treatment of a lesion on his spine. The March 2013 jury verdict included $900,000 for future pain and suffering, $600,000 for past pain and suffering and $450,000 for future lost wages.

Gilpatric approved the final judgment of $1,874,916 in Boyer's favor. The defendants had sought a $31,954 reduction in the judgment to reflect FICA payments.

The judge said he could find no legal authority to support the position by the defendants, Radiologic Associates of Middletown and Orange Regional Medical Center of Middletown, that FICA is a "personal income tax." Rather, the judge said, FICA is a 7 percent tax on income, up to a specific ceiling, that is levied on both employees and employers to fund Social Security and Medicare.

Daniel Santola of Powers & Santola in Albany represented Boyer. Rebecca Baldwin Mantello of Catania, Mahon, Milligram & Rider in Newburgh represented the defendants.

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