05 Apr Virginia Medical Malpractice: VSC Wrongful Death & Survival Actions – a Lawyer’s Concurrence
On January 16, 2009, the Virginia Supreme Court resolved a wrongful death action and a survival action for personal injuries. The medical malpractice case is Centra Health, Inc. v. Mullins, 277 Va. 59 (2009).
Centra Health upheld an estate representative maintaining concurrent damage causes of action for wrongful death and for survival for personal injuries through jury verdict. “In this particular [medical malpractice] case, the circuit court correctly determined that compelling an election [prior to or even at trial] would put the administrators in the untenable, and manifestly unjust, position of having to elect between two potentially viable claims, which Centra Health was contesting on separate and independent grounds.” Id. at 79.
Additionally, Centra Health upheld the survival action award of $325,000.00 for personal injury damages as not reflecting any confusion, undue sympathy, or other excessiveness. The Virginia Supreme Court found that the trial court was painstaking in its instructions and that the defendant’s characterization of the personal injuries arising from medical malpractice minimized them unduly. Id. at 81-82.