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 Damages

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.

Concessions Made

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 of causation, 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, suffering, loss of income, medical expenses and loss of services. 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.”

To understand what happens to what I call “the survival damages” and whether an election is required, it is necessary to do some historical research. What follows is a chronology of the case law and statutes going back to 1887.

Case Law and Statutes

1887

Section 2902: Wrongful death action allowed.

Section 2906: Where action is brought by injured party claiming neglect and that party dies as a result of the injury the action does not abate but may be revived in the name of the personal representative and the pleadings shall conform to an action brought under section 2902.

January 29, 1894

Section 2906: Where action is brought by injured party and that party dies as a result of that injury the action does not abate but it may be revived in the name of his personal representative. This section does not require the revived action to conform to section 2902.

1896

Anderson v. Hygeia Hotel, 92 Va. 687

Accident on January 12, 1892. Suit filed in June 1893. Lord Campbell’s Act (Virginia Code § 2902) did not intend to continue plaintiff’s right of action for injury but to substitute for it a new and original right of action. As of the date of accident, personal injury claims did not survive pursuant to the common law regardless of the cause of death. The language in section 2906 does not change this. The January 29, 1894 amendment to section 2906 is not applicable because the judgment in this case was September 13, 1893.

June 1902

Chesapeake and Ohio Rwy. V. Rogers, 100 Va. 324 (1902)

Headnote 11 says a jury instruction is allowed for compensation for physical pain and mental anguish suffered by decedent.

September 1908

Stevenson v. W.M. Ritter Lumber Co., 108 Va. 575, 582 (1908)

In this wrongful death case involving a son, it was conceded that the father had a right to recover for loss of services of the son between the injury and death.

March 8,1918

Section 5786:  Wrongful Death Statute

Section 5790: Where action is brought by injured party due to neglect and injured party dies while the action is pending as a result of that neglect the action does not abate but may be revived in the name of personal representative and pleadings shall be amended so as to conform to an action under section 5786 (Wrongful Death) and the case shall proceed as if brought under that section. There shall be only one recovery for the same injury. Nothing herein extends the statute of limitations or creates assignability where it did not otherwise exist.

Reviser’s note says “If  the death resulted from the injury, and the action is revived the section provides there shall be but one recovery for the same injury, that is, the recovery is to cover the damages both for the injury and the death.”

“For a personal injury not resulting in death, for which no action is brought by the injured party in his lifetime, no provision is now, or has ever been made, and it simply dies as at common law.”

September 1920

Virginia Iron, Coal & Coke Co., et al. v. Odle’s Adm’r., 128 Va. 280 (1920)

Decedent was taken sick on October 13, 1918 and died on October 24, 1918. In this wrongful death action, plaintiff alleges negligence of defendant contributed to death of decedent. Jury instruction eight was erroneous in that it said jury could award damages for physical pain and mental anguish of decedent. Odle’s at 309. It relies in part on Anderson. This case makes no mention of section 2906 or 5790 but would have been bound by the latter. This case was brought as a wrongful death action.

February 10, 1920

Section 5790: where action is brought by injured party caused by neglect and death results from such neglect pleadings may be amended so as to conform to action under section 5786 (Wrongful Death action) and case proceeds as if brought under that code section. There shall  be but one recovery for the same injury. Nothing herein extends the statute of limitations or creates assignability where it did not otherwise exist.

March 26, 1928

Section 5790:  This is the same as the February 10, 1920 statute.

1936

Watson v. Daniel, 165 Va. 564 (1936)

Child injured in auto crash on September 7, 1932. Action was brought on March 24, 1934. The question is what is the statute of limitations?  At common law personal actions died with the death of either party but by statute now in Virginia, all personal actions survive except some in tort. Here the plaintiff’s personal injury does not survive but the financial loss suffered by his estate is one that would survive and therefore is governed by a five (5) year statute of limitations.

1950

Code section 8–640: When action is brought by person injured from neglect of another and person dies pending the action from the conduct of the other party the action does not abate but may be revived. The pleadings should be amended to conform to a wrongful death action and the case proceeds as if brought under such code sections. There shall  be but one recovery for the same injury.

1953

Seymour v. Richardson, 194 Va. 709 (1953)

In personal injury action brought in the name of the administrator after the injured person’s death, no recovery could be had for mental anguish, pain or suffering of that decedent. In this case, injury occurred on November 25, 1950. Action was brought on April 11, 1951. Plaintiff died on November 9, 1951 from injuries unrelated to the accident. On January 26, 1952, the action was revived in the name of the Administratrix. The court cited Code §8-628.1 which says that “No cause of action for injuries to person or property shall be lost because of the death of the person in whose favor the cause of action existed provided however in such action no recovery can be had for mental anguish, pain or suffering.”

1956

Virginia Code §8-628.1

No cause of action for injuries to a person shall be lost because of the death of the person in whose favor the cause of action existed provided, however in such action no recovery can be had for mental anguish, pain or suffering.

1964

Virginia Code §8-628.1

No cause of action for injuries to person shall be lost because of the death of the person in whose favor the cause of action existed provided said person’s subsequent death was not occasioned by the acts giving rise to such cause of action. This is the first time that a Virginia statute clearly says that the survival damages in a survival claim actually survive the passing of the injured party.

April 1967

Wilson v. Whitaker, 207 Va. 1032 (1967)

Right of action for personal injuries does not survive decedent where injury causes death but new right of action is given to beneficiaries

1977

Code § 8.01-25:  This section removes the various limitations and provides that all causes of action survive the death of the plaintiff or defendant.

Code section 8.01–56: When person has brought an action for personal injury dies, such action may be revived in the name of his personal representative. If death resulted from the injury for which the action was originally brought, pleadings shall be amended to conform with wrongful death statute and case proceeds as it brought under such section. There shall be but one recovery for the same injury.

1995

Hendrix v. Daugherty, 249 Va. 540 (1995)

This was a legal malpractice action. However 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.

1998

Jappell v. Arlington Health Foundation, 47 Va. Cir. 419

This case was before the trial court on demurrers. The trial court notes that the General Assembly had amended the wrongful death statute so as to allow recovery of medical expenses. The amendment made no mention of allowing recovery for decedent’s pain and suffering and therefore it must not have intended to include that.

2012

McKinney v. Virginia Surgical Assoc., 384 Va. 455 (2012)

On July 3, 2007, decedent was taken to ER. He was treated there by defendant’s physicians. Defendant’s physicians further performed surgery on August 6, 2007. On July 21, 2009, suit was filed for medical malpractice. Decedent died on February 24, 2010. Plaintiff nonsuited the wrongful death action and re-filed simply as a survival action. The court said that the survival action is part of the same cause of action as the wrongful death case. There is only a single cause of action.

2020

Green v. Diagnostic Imaging Associates, P.C., et al., 299 Va. 1, 12 (2020)

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.

Takeaway

The takeaway from all of this is the following:

  1. The statutes are consistent going back to 1918 that where an injury action morphs into a wrongful death action, there can be no duplicate recovery. There wouldn’t have been any need to say that unless the survival damages survive.
  2. Nothing in the wrongful death statutes suggests that the survival damages somehow disappear at death. Prior to 1964, the statutes on what survives and what does not survive are confusing. Do all personal injury damages die with the decedent? Unclear. Do only personal injury claims that have not been filed die with the decedent? Unclear. The best that can be said is that there is some confusion in the law on this issue until 1964.
  3. The reviser’s note in the 1918 Code is crystal clear: Where the decedent has died from the injury, then in the revived action, recovery is allowed for the survival damages and the wrongful death damages.
  4. Any emphasis on Odle’s is misplaced as the claim asserted was solely for wrongful death and therefore only wrongful death damages could be claimed.
  5. 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 statutes that says that.
  6. The goal of the language in § 8.01-56 and its predecessors, 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. 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 is 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 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 Exhaustive

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.

Odle’s Is Not Applicable

7. Odle’s, supra is not a bar to the survival claim. Odle’s did not involve a survival claim. But rather it involved jury instructions that instructed on survival damages when the only claim pled was a wrongful death claim.

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 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. This is all with the assurance to the Court that there will be no duplication.

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. In other words 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

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Brien Roche

Brien A. Roche has been an attorney since 1976. Mr. Roche is admitted to practice in Virginia, the District of Columbia, and Maryland. In addition to his busy law practice, Mr. Roche is also a published author of several books & articles relating to the practice of law.

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