Wrongful Death Damage Recovery
A wrongful death action in Virginia is recognized by statute. The statute is found at Virginia Code § 8.01-50.
A wrongful death action is an action that is brought by the administrator or executor of someone’s estate after that person has passed away assuming that their death is caused by the negligence or fault of some other person.
The purpose of the Virginia wrongful death action is to compensate the beneficiaries of the decedent. Typically the beneficiaries would be a spouse and/or children. The statute however does define other potential heirs as also being beneficiaries.
Wrongful Death Damage Recovery May Be Broader Than Is Thought
The damages that typically are recoverable in a Virginia wrongful death action are defined by Virginia Code § 8.01-52 which says that those recoverable damages are such things as what are typically called non-economic damages meaning sorrow, anguish, solace from the loss of the decedent. The economic damages that are recoverable are compensation for reasonably expected loss of income and for loss of services, protection or care provided by the deceased person. Other economic damages that are recoverable are such things as the bills associated with the treatment and hospitalization of the decedent relating to the injury which then caused the death and also reasonable funeral expenses. Punitive damages may be recovered if the wrongdoer’s conduct is willful or wanton or is of such a nature as to constitute recklessness showing a conscious disregard for the safety of others.
As to these so-called “economic damages”, the loss of income of the decedent is typically something that is calculated by an economist or CPA to calculate what that total loss of income was over the course of the decedent’s life. In addition to that there may be compensation for reasonably expected loss of services. Loss of services would be such things as what a spouse or parent may provide in terms of mowing the lawn, cleaning the gutters and other such types of household and personal services. Those are all things that can be calculated by an economist.
The defendant may maintain that any loss of income should be offset by taxes and the percentage of that income that would have been consumed by the decedent. The prevailing case law however indicates that those deductions are not appropriate.
Where things frequently get tricky in regards to wrongful death actions is making a distinction between what are the wrongful death damages and what are referred to as the survival damages.
In Virginia a personal injury claim does survive the death of the decedent. For instance if somebody is injured in an auto collision and languishes in the hospital for six (6) months and then passes away as a result of those injuries that action would be treated as a wrongful death action. The issue then becomes whether or not that pain and suffering for the six (6) months post-injury and prior to death are recoverable as part of the wrongful death action.
If you apply the analysis that the purpose of the wrongful death action is to compensate the beneficiaries for their loss then the answer to that question is probably no since the beneficiaries are not the ones who experienced the pain and suffering attributable to the collision. The beneficiaries however did experience pain and suffering in terms of seeing their loved one undergo this pain and suffering. That is recoverable.
In 2009 the Virginia Supreme Court in the case of Centra Health, Inc. v. Mullins, 277 Va. 59, 670 S.E.2d 708 dealt with a somewhat complex issue of whether or not pre-death pain and suffering could be recovered either in a wrongful death action or what is called a survival action.
In your typical case whatever fault on the part of the defendant caused the injury, it is likewise that same fault that will have caused the death if in fact death results. For instance in an auto collision case the negligence of the defendant in the operation of the vehicle is what caused the injury and it is likewise that same fault that then caused the death.
In a medical malpractice case there may be instances where the fault of the defendant caused the injury but then there is a separate fault that may have caused or contributed to the death. In that latter context you may have a circumstance where the injury is not what caused the death. A claim like that is going to be limited simply to a survival claim and probably cannot be asserted as part of a wrongful death action.
If however the injury caused the death i.e., there is only one true cause of the death then that existing personal injury claim is subsumed into a wrongful death action. The question arises as to whether or not as part of that wrongful death action the administrator/executor and beneficiaries can recover for that pre-death pain and suffering.
Wrongful Death Damage Recovery May Have Been The Subject Of Admissions In The Case Law
I don’t believe the Centra Health case clearly addresses that issue.
In my mind there is no reason why the pre-death pain and suffering of the decedent should not be recoverable as part of the wrongful death action. The wrongful death act does allow for the recovery of pre-death medical expenses caused by the injury which results in the death. If those economic losses are recoverable then why wouldn’t the non-economic losses likewise be recoverable?
It’s also worthy of note that the Virginia Code dealing with wrongful death damages found in § 8.01-52 does expressly say that the itemization of recoverable damages is not intended to be exhaustive.
As such the issues that need clarification as far as exactly what is recoverable in a death case are:
1. Whether or not pre-death non-economic losses caused by the injury which in turn caused the death can be recovered as part of the wrongful death action or are they simply lost.
2. If the facts are that the injury and the death were caused by different factors then why wouldn’t you still be allowed to recover on both the survival claim and the death claim since the damages are not overlapping or redundant?
For more information on wrongful death see the pages on Wikipedia.