July 17, 2020

The Virginia Supreme Court stated in its opinion dated June 3, 2020 in a case where the trial court in Virginia had dismissed a Virginia wrongful death lawsuit against Virginia medical providers on the basis that the plaintiff had received a personal injury settlement against Kentucky medical providers concerning the same injury: “Code § 8.01-56 plainly states that if the injured individual’s death resulted from the injury, the action for that injury must be pursued in a wrongful death suit under Code § 8.01-50. In Virginia, a personal representative does not have the option of maintaining a personal injury action for a decedent’s injury if that injury resulted in the decedent’s death. See Code §§ 8.01-25 and -56 … Thus, if the injury complained of caused the death, “the pleadings are required to be amended, and the case proceeded with as if brought under the death by wrongful act statutes” … Code § 8.01-56 is not an election of remedy statute. Under the plain language of Code §§ 8.01-25 and -56, determining which action to bring is not a matter of choice, but rather it is dictated by the facts regarding causation of an injured person’s death.”

The Underlying Facts

The husband of the decedent filed wrongful death and personal injury actions in a Virginia circuit court and in a Kentucky circuit court, alleging that the decedent died as the result of medical professionals in both states allegedly failing to identify and treat the decedent’s mesenteric ischemia when her ischemic bowel was salvageable. The plaintiff subsequently settled the Kentucky medical malpractice wrongful death lawsuit for an undisclosed sum, and on July 3, 2017, the Kentucky circuit court entered an order of dismissal that recognized the settlement and dismissed all claims against the remaining defendant with prejudice.

On August 24, 2015, the plaintiff had sued the Virginia medical malpractice defendants, alleging wrongful death under Code § 8.01-50 and a survival action for personal injury under Code § 8.01-25. The defendants subsequently filed a plea in bar, contending that the survival action was barred by the statute of limitations. On December 15, 2016, the circuit court granted the plaintiff’s motion to nonsuit the case, without prejudice, as to one of the defendants.

On April 3, 2018, the circuit court granted the plaintiff’s request for leave to amend the complaint, and the plaintiff filed an amended complaint on that same day that did not include the defendant whom had been nonsuited. The amended complaint solely asserted a wrongful death action under Code § 8.01-50, alleging that the remaining defendants were negligent and that their failure to identify and treat the decedent’s mesenteric ischemia when her ischemic bowel was salvageable was a proximate cause of her death.

The defendants moved to dismiss the amended complaint, arguing that Code § 8.01-56 barred the plaintiff’s wrongful death action in Virginia because the plaintiff had already elected his remedy when he recovered for personal injury to the decedent in Kentucky. Additionally, the defendants argued that the prohibition against claim-splitting and double recovery barred the plaintiff from splitting his single cause of action into two separate claims and recovering under both, and that the wrongful death action was also barred by judicial estoppel.

The trial judge granted the defendants’ motions to dismiss, concluding that Code § 8.01-56 barred the plaintiff’s wrongful death action in Virginia, explaining that “Code § 8.01-56 requires plaintiffs in Virginia “to make an election as to whether they want to recover for personal injury or wrongful death,” and that Code § 8.01-56 makes it clear that Virginia law only allows for “one recovery for the same injury.”

“Noting that the law in Kentucky does not require a plaintiff to make such an election, the circuit court opined that not requiring a plaintiff to make an election, as required by Code § 8.01-56, would be seen as resulting in a “double recovery” or “case splitting” under Virginia law. It concluded that [the plaintiff’s] “Kentucky settlement for personal injury equates to the election required by” Code § 8.01-56. The circuit court stated that under a plain reading of Code § 8.01-56, “the mere acceptance of the recovery in Kentucky for the same injury does foreclose any later acceptance of a recovery in Virginia for the same injury.” Thus, [the plaintiff] could not pursue a wrongful death action in Virginia for the same injury. Lastly, the circuit court also concluded that judicial estoppel applied as a bar to [the plaintiff’s] wrongful death claim.”

The plaintiff filed an appeal.

Virginia Supreme Court Opinion

The Virginia Supreme Court stated that a plaintiff does not necessarily have to decide before trial whether the facts support a personal injury action or a wrongful death action. A plaintiff may bring a personal injury action and assert a wrongful death action in the alternative, if the plaintiff is unsure of his ability to prove that the decedent’s death resulted from the decedent’s injury. However, once the facts adduced at trial sufficiently establish whether the personal injuries and the death arose from the same cause, a plaintiff, in Virginia, can only recover on the claim that is supported by the record. The facts dictate whether a plaintiff can recover under the wrongful death statute, Code § 8.01-50, or whether the plaintiff can recover for the decedent’s personal injury under Code § 8.01-25.

The Virginia Supreme Court held in the present case: “Accordingly, in the instant case, [the plaintiff’s] ability to recover in Virginia for the personal injury or wrongful death of the decedent was not an “election” [the plaintiff] was required to make under Code § 8.01-56. Because [the plaintiff] alleged in the amended complaint that the decedent died as a result of the injury she suffered at the hands of negligent defendants, in Virginia, his claim could only proceed as a wrongful death action pursuant to Code § 8.01-50. There is no language in Code § 8.01-56 that would prohibit the filing of a wrongful death action in Virginia because of the settlement of a personal injury claim in another state. Further, Kentucky law allows the filing of a personal injury claim in addition to a wrongful death claim for the same injury. See Ky. Rev. Stat. Ann. § 411.133. Thus, as a matter of law the settlement of the Kentucky personal injury claim did not operate as an election of remedies by [the plaintiff] in the Kentucky case. For these reasons, we conclude that the circuit court erred in granting the motions to dismiss on the grounds that [the plaintiff] elected a remedy when he settled the Kentucky personal injury action, and that [the plaintiff’s] wrongful death action is barred by Code § 8.01-56. The circuit court also mentioned claim-splitting, double recovery, and judicial estoppel as possible bases for its ruling on the motions to dismiss. We conclude that none of those doctrines supports the circuit court’s granting of the motions to dismiss … the rule against claim-splitting does not apply because [the plaintiff] is not bringing successive suits against the same defendants. Rather, [the plaintiff] filed separate suits against the Kentucky Defendants and the Virginia Defendants. Additionally, the parties do not dispute that the Kentucky Defendants and the Virginia Defendants are joint tortfeasors, and under Virginia law, “[a] judgment against one of several joint wrongdoers shall not bar the prosecution of an action against any or all the others, but the injured party may bring separate actions against the wrongdoers and proceed to judgment in each . . . .” Code § 8.01-443.” [“Claim-splitting” is bringing successive suits on the same cause of action where each suit addresses only a part of the claim.]

Double Recovery

“[The plaintiff] contends that he would not receive a double recovery because the circuit court could reduce any judgment he receives in Virginia by amounts already compensated in the Kentucky settlement, to the extent any part of that settlement may be found to constitute a double recovery. We agree. An allegation of a potential double recovery was not a sufficient basis for dismissing [the plaintiff’s] action; any alleged double recovery can be addressed by the circuit court. Therefore, the circuit court erred when it dismissed the amended complaint on the grounds that allowing [the plaintiff’s] wrongful death action in Virginia to proceed would allow a double recovery.”

Judicial Estoppel

Judicial estoppel forbids parties from assuming successive positions in the course of a suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory. In Virginia, the doctrine of judicial estoppel only applies when the parties to the disparate proceedings are the same. “Here, it is clear that the parties in Kentucky and Virginia are different, and there is nothing inconsistent concerning how the Kentucky case was resolved and [the plaintiff’s] pursuit of the wrongful death action against different defendants here in Virginia. Therefore, the circuit court erred in dismissing the amended complaint based upon judicial estoppel.”

Source Green v. Diagnostic Imaging Associates, P.C., Record No. 190181.

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