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Wrongful Death Damages

Fairfax Injury Lawyer Brien Roche Addresses Wrongful Death Damages

Brien Roche

Preserving Survival Damages

When Your Case Morphs Into a Wrongful Death Action

Wrongful Death Damages Should Include Survival Damagse

If you’ve had a client who died during the course of your handling an injury claim then you know there are some tricky issues ahead. If the injury that brought the client to you was not the cause of death, then you have a survival claim. That is simple. That is governed by Virginia Code § 8.01-25.

Wrongful Death Damages in Centra Health

In contrast if there is a basis to argue that the injury did cause the death then you have to deal with Centra Health, Inc. v. Mullins, 277 Va. 59, 670 S.E.2nd 708 (2009).

The facts in that case were that the patient was admitted to the hospital for a broken hip. The fault of the staff was alleged to have caused a urinary tract infection. The date of admission was November 3, 2004. The patient died on November 21, 2004. Suit was filed for wrongful death. Also there was a survival claim.

The administrators claimed that no election between claims was required until after verdict. In addition the plaintiffs conceded that if the injuries caused the death then they could only recover on the death claim. However since the defendant contested the issue, the plaintiffs should be allowed to proceed on both claims. The issue was to be decided by the jury. Plaintiff’s expert stated it was a failure to treat the infection that contributed to plaintiff’s death. The defendant presented evidence that the death was the result of prior conditions.

The Trial Court told the jury they could award damages only under one of the claims. Call, or contact us for a free consult.

What Happens To The Survival Claim?

Therefore the jury was making the election. The question remained as to what happens to the survival damages. Those damages are the pre-death pain and suffering and loss of income. If the jury believes the injury caused the death do such damages vanish? The defense says Yes. They rely on the final sentence of Virginia Code § 8.01-56. This states “If death resulted from the injury for which the action was originally brought, a motion for judgment and other pleadings shall be amended so as to conform to an action under § 8.01-50, and the case proceeded with as if the action had been brought under such section. In such cases, however, there shall be but one recovery for the same injury.”

Case Law

The case law on the issue is not exactly a model of clarity. In Stevenson v. W.M. Ritter Lumber Co., 108 Va. 575 (1908) the issue on demurrer was whether a father had a right to recover by reason of the wrongful death of his son. The claim was for loss of services between the time of death and the age of majority. The Court noted that the Wrongful Death Statute does not affect the right of action for damages existing at common law in favor of a personal representative or a parent to recover for losses between the time of an injury and the resulting death of the person injured.

In Virginia Iron, Coal and Coke Co. v. Odle’s Administrator, 128 Va. 280 (1920) no recovery was allowed in the wrongful death action for pre-death pain and suffering. However the survival statute in effect at that time did not allow personal injury claims to survive. They died with the injured person.

In Monroe v. Whitaker, 207 Va. 1032, 154 S.E.2d 124 (1967) the issue was whether or not punitive damages were recoverable under the Wrongful Death Statute. The Court cites Virginia Iron as stating that pain, suffering, medical expenses and funeral expenses are not recoverable under the Wrongful Death Act. In Jappell v. Arlington Health Foundation, 47 Va. Cir. 419 (1998) on demurrer the Trial Court ruled that the decedent’s pre-death pain and suffering were not recoverable. When the Wrongful Death Act was amended to allow recovery for medical expenses it did not include pain and suffering. Therefore that omission must have been intended.

No Statute

What these cases do not address is that no Virginia statute purports to extinguish pre-death survival damages that are not duplicative of the wrongful death damages. The defense argues that “a motion for judgment and other pleadings shall be amended so as to conform to an action under § 8.01-50” wipes out pre-death survival damages. There is nothing in the statute that says that.

The goal of the language in § 8.01-56 was most likely to assure that plaintiffs retained their right of action for wrongful death. In addition there is nothing that says the legislature intended to deny a Plaintiff the option to pursue a survival action. Indeed the bar against duplicate damages suggests both claims may be pursued. How else could there be duplication (doubling)? Call, or contact us for a free consult.

Two Scenarios

There are two scenarios that you need to look at:

1.  There is no dispute that the injury caused the death.

2.  There is a dispute as to whether the injury caused the death.

In either scenario your case may be converted to a wrongful death action. If the underlying injury action was pending on the date of death Virginia Code 8.01-56 states such is required. If there is no pending action then there is nothing to amend. However in El Meswari v. Washington Gas Light Co. the U.S. court stated it could see no reason why Virginia would not treat a pre-suit claim in this context any different than a claim with a lawsuit pending.

Wrongful Death Damages SCENARIO #1

Take the case of a burn injury where a person survives for a long time and then dies from the injury. There is a huge pain and suffering claim. There is a large loss of income. In addition, the plaintiff has a lifelong loss of income claim. All of those damages are fixed and undisputed when the plaintiff dies. What happens to that claim? The defense says that those pre-death damage claims die with the plaintiff.

There are several arguments to be made to the contrary:

The Code speaks

1. Even if Virginia Code § 8.01-56 controls in terms of the mandatory amendment to a wrongful death action, there is nothing within that Code section that says that the plaintiff thereby forfeits their survival damages. Forfeiture is disfavored in the law. Rafalko v. Georgiadis, 290 Va. 384, 395, 777 S.E.2d 870, 875 (2015). As stated above the fact that duplication is barred means there must be two claims.

One Cause Of Action

2.  In McKinney v. Virginia Surgical Associates, 284 Va. 455, 732 S.E.2d 27, (2012) the Court dealt with a statute of limitations issue. The cause of action was for medical malpractice. The Court addressed “cause of action” and “right of action”. It noted that the cause of action was medical malpractice. This caused the injury. From that cause of action there were two rights of action. One was the action for the personal injury during the lifetime of the decedent which survived. The other was the wrongful death action. If in fact those rights of action are subparts of a single cause of action and if the cause of action continues per Virginia Code § 8.01-229B, then all of the damages from either right of action survive. In other words the survival damages live on as do the wrongful death damages. Call, or contact us for a free consult.

Different Claims

3. The concern in the case law is to make sure the plaintiff does not recover double damages. The potential for such seems to be minimal. Any chance of such can be covered with the crafting of proper jury instructions. Any chance for double damages exists only in the realm of the lost income claim. Within the survival claim there may a permanent total loss of income claim. This could overlap with the income claim in the wrongful death action. That is not a given.

First of all the beneficiaries are different. The heirs-at-law through intestacy and the heirs per the will take under the survival claim. In contrast the statutory beneficiaries take under the wrongful death claim. Second there are different measurements of loss. In the survival claim gross income is the measure. In the wrongful death action the income may have personal consumption deducted. Finally there are issues as far as dependency. In the survival claim dependency is not an issue. In the wrongful death action, dependency may be an issue.

Property Rights

4. The survival damages (pre-death pain and suffering and loss of income) are property rights. The Court cannot take those away without due process. Likewise there may be an issue of just compensation per either the Fifth Amendment or the Fourteen Amendment to the U.S. Constitution.

Medical Expenses

5. The purpose of wrongful death recovery is to compensate the beneficiaries. In contrast it is not to benefit the estate. Conrad v. Thompson, 195 Va. 714, 80 S.E.2d 561 (1954). However that purpose is undermined within the Wrongful Death Act. Recovery is allowed for medical expenses. The statute dictates those medical expenses are to be allotted to the “creditors”.

If there is a claim for medical expenses and insurance has covered those expenses and there is no right of subrogation then who gets the money? It does not go to the beneficiaries. Rather it goes to the estate. It is then distributed pursuant to the will or if no will, then per the law of intestacy. However if such recovery is allowed as to pre-death medical expenses, then why wouldn’t recovery be allowed as to pre-death pain and suffering and loss of income?

Not Exclusive

6. Virginia Code § 8.01-52 expressly states that the damages recoverable under the Wrongful Death Act are not exhaustive. What else is included? How about pre-death pain and suffering and loss of income? In McKinney, supra, the Court noted that when a survival action is converted to a wrongful death action, the wrongful death action is the sole remedy. It cited Centra Health. However that dicta does not mean pre-death survival damages die with the decedent. Call, or contact us for a free consult.

Wrongful Death Damages SCENARIO #2

The second scenario is one where there is a dispute whether the injury caused the death. This is what existed in Centra Health. The Court there said that issue was for the jury to decide. However damages would only be awarded under one such right of action. As a result if the jury concluded the claim was a wrongful death action, then there are no survival damages awarded. Therefore counsel should never concede the pre-death survival damages that are non-duplicative die. Certainly if the jury decides the injury was not the cause of death, then all you have is a survival action.

Where there is a bona fide dispute as to whether the injury was the cause of death, aside from the points made above, there are other facts to consider:

How Does The Conflict Arise?

1. What is the proper way to create such a conflict as to the issue of causation? That is, does the conflict have to be created during the plaintiff’s case in chief? Can the conflict arise simply because the plaintiff says that the injury was the cause of death and the defendant presents contrary evidence? In Lucas v. HCMF Corporation, the Trial Court prematurely barred the plaintiff from presenting conflicting evidence as to causation. In Centra Health the plaintiff presented conflicting evidence on the issue of causation. This created a jury issue It was then buttressed by the the defendant who asserted the injury was not the cause of death.

Bifurcation

2. Centra Health suggested that one way to streamline cases involving a dispute as to whether the injury was the cause of death is to bifurcate the issue of causation from the damage issues. However bifurcation most often works harm to the plaintiff. With well worded jury instructions confusion is avoided. Therefore bifurcation is avoided.

No Concession

3. It’s important to assert that survival damages continue where the wrongful death claim continues. In Centra Health, plaintiff’s counsel conceded that if there was a dispute as to whether the injury was the cause of death then there would have to be an election. That is not so. Once the jury decides causation then the election is over. Then the issue is whether the plaintiff can recover all proper survival damages (pre-death pain and suffering, non-duplicative loss of income) and wrongful death damages. The answer is Yes. This is all with the assurance to the Court that there will be no duplication. If the jury concludes the injury was not the cause of death then all you have is a survival claim.

In Hendrix v. Daughtery, the Court dealt with a legal malpractice action. The underlying claim was medical malpractice. In the context of the legal malpractice action, the Supreme Court stated that after discovery was completed the plaintiff should be required to elect whether they will proceed on a theory that the defendant’s attorneys breached the duty that was owed in the pursuit of the wrongful death action or the survival action. However that language was dicta. The issue before the Court was whether the Demurrer should have been sustained. The Court reversed the Trial Court on that latter issue.

Delay Filing

4. Where a client has an injury claim and may pass away within the short term, there is some logic in holding off on filing suit. This avoids the mandatory amendment under Virginia Code § 8.01-56. If there is no action pending then there is nothing to amend. As a result both actions can then be filed and all claims preserved. However beware of the El Meswari decision, above.
Call, or contact us for a free consult. Also for more information see the other pages on this site. In addition see the pages on Wikipedia

This posting is an adaptation of an article co-authored by Brien Roche and Richard N. Shapiro of Virginia Beach

Comments are closed.

Contact Us For A Free Consultation

Wrongful Death Damages

Fairfax Injury Lawyer Brien Roche Addresses Wrongful Death Damages

Brien Roche

Preserving Survival Damages

When Your Case Morphs Into a Wrongful Death Action

Wrongful Death Damages Should Include Survival Damagse

If you’ve had a client who died during the course of your handling an injury claim then you know there are some tricky issues ahead. If the injury that brought the client to you was not the cause of death, then you have a survival claim. That is simple. That is governed by Virginia Code § 8.01-25.

Wrongful Death Damages in Centra Health

In contrast if there is a basis to argue that the injury did cause the death then you have to deal with Centra Health, Inc. v. Mullins, 277 Va. 59, 670 S.E.2nd 708 (2009).

The facts in that case were that the patient was admitted to the hospital for a broken hip. The fault of the staff was alleged to have caused a urinary tract infection. The date of admission was November 3, 2004. The patient died on November 21, 2004. Suit was filed for wrongful death. Also there was a survival claim.

The administrators claimed that no election between claims was required until after verdict. In addition the plaintiffs conceded that if the injuries caused the death then they could only recover on the death claim. However since the defendant contested the issue, the plaintiffs should be allowed to proceed on both claims. The issue was to be decided by the jury. Plaintiff’s expert stated it was a failure to treat the infection that contributed to plaintiff’s death. The defendant presented evidence that the death was the result of prior conditions.

The Trial Court told the jury they could award damages only under one of the claims. Call, or contact us for a free consult.

What Happens To The Survival Claim?

Therefore the jury was making the election. The question remained as to what happens to the survival damages. Those damages are the pre-death pain and suffering and loss of income. If the jury believes the injury caused the death do such damages vanish? The defense says Yes. They rely on the final sentence of Virginia Code § 8.01-56. This states “If death resulted from the injury for which the action was originally brought, a motion for judgment and other pleadings shall be amended so as to conform to an action under § 8.01-50, and the case proceeded with as if the action had been brought under such section. In such cases, however, there shall be but one recovery for the same injury.”

Case Law

The case law on the issue is not exactly a model of clarity. In Stevenson v. W.M. Ritter Lumber Co., 108 Va. 575 (1908) the issue on demurrer was whether a father had a right to recover by reason of the wrongful death of his son. The claim was for loss of services between the time of death and the age of majority. The Court noted that the Wrongful Death Statute does not affect the right of action for damages existing at common law in favor of a personal representative or a parent to recover for losses between the time of an injury and the resulting death of the person injured.

In Virginia Iron, Coal and Coke Co. v. Odle’s Administrator, 128 Va. 280 (1920) no recovery was allowed in the wrongful death action for pre-death pain and suffering. However the survival statute in effect at that time did not allow personal injury claims to survive. They died with the injured person.

In Monroe v. Whitaker, 207 Va. 1032, 154 S.E.2d 124 (1967) the issue was whether or not punitive damages were recoverable under the Wrongful Death Statute. The Court cites Virginia Iron as stating that pain, suffering, medical expenses and funeral expenses are not recoverable under the Wrongful Death Act. In Jappell v. Arlington Health Foundation, 47 Va. Cir. 419 (1998) on demurrer the Trial Court ruled that the decedent’s pre-death pain and suffering were not recoverable. When the Wrongful Death Act was amended to allow recovery for medical expenses it did not include pain and suffering. Therefore that omission must have been intended.

No Statute

What these cases do not address is that no Virginia statute purports to extinguish pre-death survival damages that are not duplicative of the wrongful death damages. The defense argues that “a motion for judgment and other pleadings shall be amended so as to conform to an action under § 8.01-50” wipes out pre-death survival damages. There is nothing in the statute that says that.

The goal of the language in § 8.01-56 was most likely to assure that plaintiffs retained their right of action for wrongful death. In addition there is nothing that says the legislature intended to deny a Plaintiff the option to pursue a survival action. Indeed the bar against duplicate damages suggests both claims may be pursued. How else could there be duplication (doubling)? Call, or contact us for a free consult.

Two Scenarios

There are two scenarios that you need to look at:

1.  There is no dispute that the injury caused the death.

2.  There is a dispute as to whether the injury caused the death.

In either scenario your case may be converted to a wrongful death action. If the underlying injury action was pending on the date of death Virginia Code 8.01-56 states such is required. If there is no pending action then there is nothing to amend. However in El Meswari v. Washington Gas Light Co. the U.S. court stated it could see no reason why Virginia would not treat a pre-suit claim in this context any different than a claim with a lawsuit pending.

Wrongful Death Damages SCENARIO #1

Take the case of a burn injury where a person survives for a long time and then dies from the injury. There is a huge pain and suffering claim. There is a large loss of income. In addition, the plaintiff has a lifelong loss of income claim. All of those damages are fixed and undisputed when the plaintiff dies. What happens to that claim? The defense says that those pre-death damage claims die with the plaintiff.

There are several arguments to be made to the contrary:

The Code speaks

1. Even if Virginia Code § 8.01-56 controls in terms of the mandatory amendment to a wrongful death action, there is nothing within that Code section that says that the plaintiff thereby forfeits their survival damages. Forfeiture is disfavored in the law. Rafalko v. Georgiadis, 290 Va. 384, 395, 777 S.E.2d 870, 875 (2015). As stated above the fact that duplication is barred means there must be two claims.

One Cause Of Action

2.  In McKinney v. Virginia Surgical Associates, 284 Va. 455, 732 S.E.2d 27, (2012) the Court dealt with a statute of limitations issue. The cause of action was for medical malpractice. The Court addressed “cause of action” and “right of action”. It noted that the cause of action was medical malpractice. This caused the injury. From that cause of action there were two rights of action. One was the action for the personal injury during the lifetime of the decedent which survived. The other was the wrongful death action. If in fact those rights of action are subparts of a single cause of action and if the cause of action continues per Virginia Code § 8.01-229B, then all of the damages from either right of action survive. In other words the survival damages live on as do the wrongful death damages. Call, or contact us for a free consult.

Different Claims

3. The concern in the case law is to make sure the plaintiff does not recover double damages. The potential for such seems to be minimal. Any chance of such can be covered with the crafting of proper jury instructions. Any chance for double damages exists only in the realm of the lost income claim. Within the survival claim there may a permanent total loss of income claim. This could overlap with the income claim in the wrongful death action. That is not a given.

First of all the beneficiaries are different. The heirs-at-law through intestacy and the heirs per the will take under the survival claim. In contrast the statutory beneficiaries take under the wrongful death claim. Second there are different measurements of loss. In the survival claim gross income is the measure. In the wrongful death action the income may have personal consumption deducted. Finally there are issues as far as dependency. In the survival claim dependency is not an issue. In the wrongful death action, dependency may be an issue.

Property Rights

4. The survival damages (pre-death pain and suffering and loss of income) are property rights. The Court cannot take those away without due process. Likewise there may be an issue of just compensation per either the Fifth Amendment or the Fourteen Amendment to the U.S. Constitution.

Medical Expenses

5. The purpose of wrongful death recovery is to compensate the beneficiaries. In contrast it is not to benefit the estate. Conrad v. Thompson, 195 Va. 714, 80 S.E.2d 561 (1954). However that purpose is undermined within the Wrongful Death Act. Recovery is allowed for medical expenses. The statute dictates those medical expenses are to be allotted to the “creditors”.

If there is a claim for medical expenses and insurance has covered those expenses and there is no right of subrogation then who gets the money? It does not go to the beneficiaries. Rather it goes to the estate. It is then distributed pursuant to the will or if no will, then per the law of intestacy. However if such recovery is allowed as to pre-death medical expenses, then why wouldn’t recovery be allowed as to pre-death pain and suffering and loss of income?

Not Exclusive

6. Virginia Code § 8.01-52 expressly states that the damages recoverable under the Wrongful Death Act are not exhaustive. What else is included? How about pre-death pain and suffering and loss of income? In McKinney, supra, the Court noted that when a survival action is converted to a wrongful death action, the wrongful death action is the sole remedy. It cited Centra Health. However that dicta does not mean pre-death survival damages die with the decedent. Call, or contact us for a free consult.

Wrongful Death Damages SCENARIO #2

The second scenario is one where there is a dispute whether the injury caused the death. This is what existed in Centra Health. The Court there said that issue was for the jury to decide. However damages would only be awarded under one such right of action. As a result if the jury concluded the claim was a wrongful death action, then there are no survival damages awarded. Therefore counsel should never concede the pre-death survival damages that are non-duplicative die. Certainly if the jury decides the injury was not the cause of death, then all you have is a survival action.

Where there is a bona fide dispute as to whether the injury was the cause of death, aside from the points made above, there are other facts to consider:

How Does The Conflict Arise?

1. What is the proper way to create such a conflict as to the issue of causation? That is, does the conflict have to be created during the plaintiff’s case in chief? Can the conflict arise simply because the plaintiff says that the injury was the cause of death and the defendant presents contrary evidence? In Lucas v. HCMF Corporation, the Trial Court prematurely barred the plaintiff from presenting conflicting evidence as to causation. In Centra Health the plaintiff presented conflicting evidence on the issue of causation. This created a jury issue It was then buttressed by the the defendant who asserted the injury was not the cause of death.

Bifurcation

2. Centra Health suggested that one way to streamline cases involving a dispute as to whether the injury was the cause of death is to bifurcate the issue of causation from the damage issues. However bifurcation most often works harm to the plaintiff. With well worded jury instructions confusion is avoided. Therefore bifurcation is avoided.

No Concession

3. It’s important to assert that survival damages continue where the wrongful death claim continues. In Centra Health, plaintiff’s counsel conceded that if there was a dispute as to whether the injury was the cause of death then there would have to be an election. That is not so. Once the jury decides causation then the election is over. Then the issue is whether the plaintiff can recover all proper survival damages (pre-death pain and suffering, non-duplicative loss of income) and wrongful death damages. The answer is Yes. This is all with the assurance to the Court that there will be no duplication. If the jury concludes the injury was not the cause of death then all you have is a survival claim.

In Hendrix v. Daughtery, the Court dealt with a legal malpractice action. The underlying claim was medical malpractice. In the context of the legal malpractice action, the Supreme Court stated that after discovery was completed the plaintiff should be required to elect whether they will proceed on a theory that the defendant’s attorneys breached the duty that was owed in the pursuit of the wrongful death action or the survival action. However that language was dicta. The issue before the Court was whether the Demurrer should have been sustained. The Court reversed the Trial Court on that latter issue.

Delay Filing

4. Where a client has an injury claim and may pass away within the short term, there is some logic in holding off on filing suit. This avoids the mandatory amendment under Virginia Code § 8.01-56. If there is no action pending then there is nothing to amend. As a result both actions can then be filed and all claims preserved. However beware of the El Meswari decision, above.
Call, or contact us for a free consult. Also for more information see the other pages on this site. In addition see the pages on Wikipedia

This posting is an adaptation of an article co-authored by Brien Roche and Richard N. Shapiro of Virginia Beach

Contact Us For A Free Consultation

Contact Us For A Free Consultation