19 Jan Virginia: Medical Malpractice – a Lawyer’s Illegality
Medical malpractice, vehicle accident, and other defendants may assert “illegal act” as a defense. Easy to claim, hard to prove.
The “illegal act” defense stringently requires defendants to prove that the “illegal act” is the “direct cause” of the wrongful death or personal injury. E.g., Johnson v. Cambell, 258 Va. 433, 456-68 (1999)(emphasis added); Godbolt v. Brawley, 250 Va. 467, 471-72 (1995)(emphasis added). Godbolt recounted the “direct” causation shown in prior Virginia Supreme Court “illegal act” cases, before delineating how Godbolt’s admitted “illegal act” was not “the direct cause”:
“The plaintiffs in Eagle Star, Miller, and Zysk were all wiling participants in the intentional criminal acts that caused their injuries. The plaintiff in Eagle Star burned his own property. The decedent in Miller consented to, and thereby intentionally participated in, the abortion procedure which caused her death. Likewise, the plaintiff in Zysk participated in the illegal act of premarital sex [fornication] that caused the transmission of the disease.”
Id. at 471-72. In Godbolt, however, where the plaintiff illegally assaulted an off-duty police officer who responded by shooting him with a gun, the Virginia Supreme Court declared that Godbolt’s provoking intentional assault was not the “direct cause,” and that Godbolt did not “consent” to defendant’s consequential use of deadly force.
“In contrast, the facts underlying Benjie Godbolt’s assault on Brawley differ from the factual situations outline above. Unlike the plaintiffs in Eagle Star, Miller, and Zysk, Godbolt’s intentional criminal conduct was not the direct cause of his injury. Although Godbolt may have intentionally engaged in assaultive behavior, he did not engage in the use of deadly force and did not consent to its use. The direct cause of the injury for which Godbolt seeks damages is Brawley’s use of deadly force.”
Id. at 472 (emphasis added).
Lee v. Nationwide Mutual Ins. Co., 255 Va. 279 (1998) factually is like Eagle Star, Miller, and Zysk. Plaintiff in Lee was injured while joyriding in a stolen vehicle – and thereby fulfilled the “direct cause” requirement of the illegality defense.
Johnson, supra, in 1999 reaffirmed “direct cause” under Godbolt, and emphasized the “requirement of direct causation”:
“We said [in Godbolt] that the participant’s intentional criminal act was not ‘the direct cause’ of his injury and that the facts of Godbolt differed from the facts in cases like Zysk and Miller in which there was a direct cause-and-effect link. * * * We emphasize the requirement of direct causation, which the trial court recognized [at bar]. . . .”
258 Va. at 457 (emphasis added). Therefore, under Godbolt and Johnson, a plaintiff engaging in an “illegal act” is not necessarily a bar to recovery for wrongful death or personal injury.