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Virginia: Medical Malpractice – A Lawyer’s Election

Virginia: Medical Malpractice – A Lawyer’s Election

On June 4, 2020, the Virginia Supreme Court upheld a medical malpractice Plaintiff proceeding against Virginia Defendant healthcare providers in Virginia for wrongful death after settling with Kentucky Defendant healthcare providers in Kentucky for personal injuries causing the wrongful death. The case is Green v. Diagnostic Imaging Assocs., Record No. 190181.

The Court in Green held that:

  1. Va. Code §8.01-56 “is not an election of remedy statute”;
  2. This was not an election of remedies case;
  3. Virginia’s “rule against claim-splitting does not apply because Green is not bringing successive suits against the same defendants” (emphasis added), and additionally all Kentucky and Virginia defendants were joint tortfeasors, who as such could be sued separately successively pursuant to Va. Code §8.01-443;
  4. There was no genuine specter of impermissible “double recovery,” because the Virginia court “could reduce any judgment [Plaintiff] receives in Virginia by amounts already compensated in the Kentucky settlement”; and
  5. There was no “judicial estoppel” because the parties to the Kentucky and Virginia proceedings were different.

Id. at 9-13. The Virginia Supreme Court in Green reversed and remanded unanimously.