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  • Norman A. Thomas

Green v. Diagnostic Imaging Assocs., P.C.: Virginia Executor May Maintain Wrongful Death Action Afte

In a unanimous decision significant to Virginia tort law, on June 4, 2020, the Virginia

Supreme Court published its opinion in Green v. Diagnostic Imaging Assocs., P.C., 2020 Va. LEXIS 61 (June 4, 2020). Justice S. Bernard Goodwyn authored the Court’s opinion.

The underlying Tazewell County Circuit Court decision dismissed an executor’s medical malpractice-based wrongful death action. In sum, the circuit court held that the executor’s settlement of a Kentucky medical malpractice action seeking compensation for the decedent’s death-producing injuries legally barred the executor’s Virginia wrongful death action. The Supreme Court reversed that decision.

Beginning on May 24, 2013, the decedent, Oneida Green (“Green”), suffered severe abdominal symptoms. She initially received medical treatment at Clinch Valley Medical Center, where Dr. Qasim Rao, an employee of Diagnostic Imaging Assocs., P.C., allegedly misread a CT scan, leading to Green’s May 28th hospital discharge. Dr. Rao ordered the CT scan “to look ‘for necrotic pancreas.’” Green had a history of “stones in her pancreatic duct and chronic pancreatitis.” Dr. Rao’s CT reading found “no inflammation to suggest pancreatitis and no evidence of bowel obstruction.”

On May 29, 2013, Green’s symptoms returned, resulting in her admission to Pikeville Medical Center in Kentucky. She was discharged the next day, however, was readmitted on June 4th with renewed symptoms. Green’s condition upon readmission prompted her transfer to the University of Kentucky Medical Center. There, Green was diagnosed with “‘ischemic bowel due to the occlusion of her’ superior mesenteric artery.” Surgeons removed “extensive amounts” of her bowel due to necrosis and performed a bypass of her superior mesenteric artery to restore blood flow to her remaining bowel.

Over the next two months Green suffered numerous serious post-surgical complications. On August 10, 2013, she entered nursing home care but her complications led to subsequent hospital admissions. She first went to Johnston Memorial Hospital in Virginia, and then to Johnson City Memorial Hospital in Tennessee. Green died in the latter facility on August 25th “as a result of complications directly related and attributable to the extensive bowel resection she underwent” on June 4th.

Green’s husband, Lewis Green, qualified as Executor of her estate (“the executor”). In August 2014 he sued the Pikeville Medical Center, Pikeville Radiology, PLLC, and a doctor employed by Pikeville Radiology in a Kentucky circuit court. The executor “alleged claims for decedent’s personal injury and wrongful death,” caused by a “failure to identify and treat the decedent’s mesenteric ischemia ‘when her ischemic bowel was salvageable’”.

The Kentucky litigation progressed and on February 28, 2017, the court granted the executor’s motion to dismiss the wrongful death claim. The executor thereafter agreed to dismiss the action against all defendants except Pikeville Medical Center. On July 3, 2017, the court entered an order documenting settlement between the executor and Pikeville Medical Center regarding Green’s alleged injuries. That order dismissed the Kentucky action with prejudice.

In August 2015, the executor sued Clinch Valley Medical Center, Diagnostic Imaging, Dr. Rao and other Virginia-based doctors in Tazewell County Circuit Court. The action alleged “wrongful death under [Virginia] Code §8.01-50 and a survival action under [Virginia] Code §8.01-25.” Following a nonsuit and the filing of an Amended Complaint, in August 2018 the executor pursued only a wrongful death action against the Virginia defendants, however, it dismissed the action against Clinch Valley Medical Center. As in the Kentucky action, the executor alleged that the defendants were negligent in their “failure to identify and treat [Green’s] mesenteric ischemia when her ischemic bowel was salvageable,” and that such failure “was a proximate cause of her death.”

The defendants moved to dismiss the executor’s Amended Complaint. They “contended that Code §8.01-56 barred [the executor’s] wrongful death action in Virginia because [he] had already elected his remedy when he recovered for personal injury to [Green] in Kentucky. Additionally, the [defendants] argued that the prohibition against claim-splitting and double recovery barred [the executor] from ‘split[ting] his single cause of action into two separate claims and recover[ing] under both,’ and that the wrongful death action was also barred by judicial estoppel.”

The circuit court granted the dismissal motion. It first held that Code §8.01-56 requires Virginia plaintiffs "to make an election as to whether they want to recover for personal injury or wrongful death," and that the statute “makes it clear that Virginia law only allows for one recovery for the same injury." The court noted that Kentucky law “does not require a plaintiff to make such an election,” and opined that “not requiring a plaintiff to make an election as required by Code §8.01-56” would result in the executor’s "double recovery" or "case splitting.” The court also held that the executor’s "Kentucky settlement for personal injury equates to the election required by Code §8.01-56,” and that “the mere acceptance of the recovery in Kentucky for the same injury” foreclosed “any later acceptance of a recovery in Virginia for the same injury. Lastly, the circuit court also concluded that judicial estoppel applied as a bar to Green's wrongful death claim.”

The Supreme Court began its analysis by stating the standard of review. “In reviewing a circuit court's decision to grant a motion to dismiss, if no evidence has been taken, ‘we treat the factual allegations in the [complaint] as we do on review of a demurrer’…Accordingly, ‘[w]e accept the truth of all material facts that are . . .expressly alleged, impliedly alleged, and those that may be fairly and justly inferred from the facts alleged’…We ‘review the circuit court's decision to dismiss the [complaint]’ as well as any issues of statutory interpretation, de novo.’"

In its key holding, the Court rejected the circuit court’s finding that Code §8.01-56 is an election of remedy statute. “Code § 8.01-56 plainly states that if the injured individual's death resulted from the injury, the action for that injury must be pursued in a wrongful death suit under Code § 8.01-50. In Virginia, a personal representative does not have the option of maintaining a personal injury action for a decedent's injury if that injury resulted in the decedent's death. See Code §§ 8.01-25 and -56. Code § 8.01-56 is not an election of remedy statute. Under the plain language of Code §§ 8.01-25 and -56, determining which action to bring is not a matter of choice, but rather it is dictated by the facts regarding causation of an injured person's death.”

Citing Centra Health, Inc. v. Mullins, 277 Va. 59, 78-79 (2009), the Court noted that a “plaintiff does not necessarily have to decide before trial whether the facts support a personal injury action or a wrongful death action…However, once the facts adduced at trial sufficiently establish whether ‘the personal injuries and the death arose from the same cause,’ a plaintiff, in Virginia, can only recover on the claim that is supported by the record.”

Virginia law therefore did not put the executor to an election between personal injury and wrongful death claims. Because Green died from the alleged injuries, the executor’s claim “could only proceed as a wrongful death action pursuant to Code § 8.01-50…Thus, as a matter of law the settlement of the Kentucky personal injury claim did not operate as an election of remedies by [the executor] in the Kentucky case.” The circuit court thereby erred to grant the dismissal motion.

The Court then made short work of the circuit court’s claim-splitting, double recovery and judicial estoppel holdings. First, the defendants conceded that judicial estoppel did not apply. "‘[J]udicial estoppel forbids parties from assuming successive positions in the course of a suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory’….In Virginia, the doctrine of judicial estoppel only applies ‘when the parties to the disparate proceedings are the same.’” The executor’s Virginia and Kentucky actions involved different defendants, so judicial estoppel did not apply.

Second, the Court noted that claim-splitting “is bringing successive suits on the same cause of action where each suit addresses only a part of the claim.” Claim-splitting “is prohibited ‘based on public policy considerations’ and is intended “to protect a defendant from vexatious and costly litigation.” Here, “the rule against claim-splitting does not apply because Green is not bringing successive suits against the same defendants.”

Finally, as to double recovery, the Court noted that “[a]lthough we recognize that [the executor] admittedly seeks recovery in Virginia for the "same injury" involved in his Kentucky settlement, Code §8.01-56 and other statutory and common law principles prohibiting double recovery do not bar Green's Virginia action from moving forward.” The Court reached this conclusion “because the circuit court could reduce any judgment [the executor] receives in Virginia by amounts already compensated in the Kentucky settlement, to the extent any part of that settlement may be found to constitute a double recovery…An allegation of a potential double recovery was not a sufficient basis for dismissing [the executor’s] action; any alleged double recovery can be addressed by the circuit court.”

Based on these several holdings, the Court reversed the circuit court’s judgment and remanded the case for further proceedings.


The Court’s Green decision clarifies the procedural import of Code §8.01-56. Under specific circumstances, that clarification enables injured persons and their personal representatives to obtain complete compensatory relief when a tortious injury leads to death. Indeed, considering that Virginia borders five states and the District of Columbia, it is not unusual for an individual to receive treatment for a given medical condition in multiple jurisdictions. As with Green, each separate instance of medical care allegedly may fall below the professional standard of care and proximately cause injury leading to the patient’s death. Speaking more generally, joint and several tortfeasors may separately act in Virginia and another jurisdiction to cause injury leading to one’s death.

The Court’s holding that Code §8.01-56 does not constitute an election of remedy statute carries real significance. When joint and several tortfeasors acting in Virginia and another jurisdiction cause injury leading to death, a plaintiff or personal representative may recover damages for that injury in the other jurisdiction’s courts against one or more tortfeasors without foreclosing the representative’s right to maintain a Virginia wrongful death action against the other tortfeasor(s). Nevertheless, to prevent a double recovery in violation of Code §8.01-56, a Virginia circuit court will reduce any wrongful death recovery by amounts already compensated in another jurisdiction’s courts.

Norman Thomas

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