Wrongful Death and Survivorship Claims

A recent case of interest is Centra Health v. Mullins. This is a landmark decision by the Virginia Supreme Court, on a key area of the law that usually comes up in the context of nursing home cases. In this case, the 84 year old plaintiff was admitted to the hospital for a broken hip he sustained in a fall. Due to negligent insertion and maintenance of a catheter, the man developed a urinary tract infection. After surgery for the broken hip, hospital staff failed to treat and recognize the infection and discharged the man back to the nursing home. The man returned to the hospital for treatment of the infection, and stayed at the hospital until his ultimate death.

The man's Estate asserted a wrongful death claim, basing the claim on their assertion that his death was caused by sepsis which resulted from the defendant's failure to treat the urinary tract infection, and as an alternative claim, they filed a survivorship action, for injuries sustained by the plaintiff prior to his death, the infection and its accompanying complications.

As a side note, in Virginia, the injured party's Estate must typically choose whether they are presenting a claim for the party's death, or for the pain and suffering for the injury while the person was alive. The recovery available under each theory is dramatically different.

To make a long story short, the defendants wanted the Estate to elect which theory-wrongful death or survivorship- they were proceeding on before trial. The Estate asserted that it did not have to make that decision before trial, if the evidence would support both theories. The Virginia Supreme Court upheld the trial court's decision that held that decision by the plaintiff is not required before the jury decides the issue of whether the negligence of the hospital caused the death or the injury. The Court held that "the election is required only at a time when the record sufficiently establishes that the personal injuries and the death arose from the same cause." In this case the evidence was in dispute, and the defendant's theory of the case was that it was not negligent on either theory. Therefore, the trial court correctly submitted both theories for the jury to decide the issue. Again an important decision for those involved in cases of medical malpractice or nursing home and/or assisting living negligence cases.