Virginia: Wrongful Death – a Lawyer’s Survival

Virginia: Wrongful Death – a Lawyer’s Survival

On February 25, 2015, the Virginia Supreme Court heard oral argument in Wagoner v. Commonwealth, No. 140890, a criminal conviction for wrongful death of an incapacitated group home resident in Circuit Court for Martinsville, Virginia. It marquees a split panel decision of the Court of Appeals of Virginia on application of the “substantial possibility of survival” standard, which most frequently is subject of medical malpractice cases.

The published Court of Appeals opinion in Wagoner specifically rejected that “Commonwealth must have proved a probability that Tuggle would have survived with different treatment, or in other words, a greater than fifty percent chance of survival,” and held instead that a “twenty-five percent chance of survival is sufficient” to bear the burden of “but for” proximate causation. Wagoner v. Commonwealth, 63 Va. App. 228, 243-56 (2014)(emphasis added). Conversely, the dissenting opinion of Justice Huff reasoned that although a “thirteen to twenty-five percent chance of survival” was a “substantial possibility of Tuggle’s survival,” it nonetheless did not satisfy the burden of proving “but for” proximate causation. Id. at 260-66.