RICHMOND, Va. (Legal Newsline) – A widower is allowed to pursue separate wrongful death lawsuits in separate states against the medical professionals he blames, the Virginia Supreme Court has ruled.
The court’s June 4 decision allows Lewis Darnell Green to pursue a lawsuit in Tazewell County Circuit Court – even after his case in Kentucky against Kentucky defendants resulted in a settlement.
Each lawsuit alleged the defendants failed to treat his wife’s mesenteric ischemia when her ischemic bowel was salvageable. The defendants argued Virginia law allows for only one recovery for the same injury and that Green failed to decide whether he was pursuing a personal injury or wrongful death claim.
The circuit court agreed but has now been overturned.
“Green’s ability to recover in Virginia for the personal injury or wrongful death of the decedent was not an ‘election’ Green was required to make under Code § 8.01-56,” Justice Bernard Goodwyn wrote.
“Because Green alleged in the amended complaint that the decedent died as a result of the injury she suffered at the hands of negligent defendants, in Virginia, his claim could only proceed as a wrongful death action pursuant to Code § 8.01-50.
“There is no language in Code § 8.01-56 that would prohibit the filing of a wrongful death action in Virginia because of the settlement of a personal injury claim in another state. Further, Kentucky law allows the filing of a personal injury claim in addition to a wrongful death claim for the same injury.”
The trial court thought Green’s lawsuits could constitute double recovery, but the Supreme Court ruled that to not be the case.
“In the instant case, the rule against claim-splitting does not apply because Green is not bringing successive suits against the same defendants. Rather, Green filed separate suits against the Kentucky Defendants and the Virginia Defendants,” Goodwyn wrote.