Joe Whitcomb
Wrongful death action following medical treatment in multiple states
Lewis Darnell Green, as personal representative of Oneida Stiltner Green's estate, filed a wrongful death lawsuit in Virginia against several medical providers. He alleged their failure to identify and treat mesenteric ischemia led to her death. The case followed Green's earlier personal injury lawsuit in Kentucky against separate medical providers who treated the decedent after her discharge from a Virginia facility.
In May 2013, Oneida Green was admitted to Clinch Valley Medical Center in Virginia for abdominal pain. Imaging was performed and reviewed by Dr. Rao of Diagnostic Imaging Associates, with findings not indicating bowel obstruction. She was discharged on May 28. The following day, she sought care in Kentucky and was ultimately diagnosed with ischemic bowel at the University of Kentucky Medical Center, where she underwent extensive surgery and continued treatment until her death in August 2013.
Parallel litigation in Kentucky and Virginia
In 2014, Green sued providers in Kentucky, including Pikeville Medical Center. That litigation included both personal injury and wrongful death claims. Green later dismissed the wrongful death claims and settled the personal injury claims. In 2015, Green filed suit in Virginia, naming new defendants and asserting a wrongful death action based on the earlier treatment in that state.
The Virginia circuit court dismissed the case, concluding that Green’s Kentucky settlement constituted an election of remedies under Code § 8.01-56. The court reasoned that Virginia law allowed only one recovery for the same injury and found that accepting a personal injury settlement in Kentucky barred the Virginia wrongful death claim. The court also cited doctrines of claim-splitting, double recovery, and judicial estoppel.
Supreme Court of Virginia reverses dismissal
The Supreme Court of Virginia held that the lower court erred in dismissing the complaint. It clarified that Code § 8.01-56 does not establish an election of remedies but rather sets limits on double recovery at the judgment stage. Under Virginia law, a wrongful death claim is required when death results from the alleged injury, and the statute does not bar filing such a claim merely because of a settlement involving different defendants in another jurisdiction.
The court further found that the claim-splitting doctrine was inapplicable because the suits involved different parties. The Kentucky and Virginia defendants were joint tortfeasors, and Virginia law allows a plaintiff to sue joint tortfeasors separately. Any risk of double recovery could be addressed by crediting the Kentucky settlement against any Virginia recovery.
Judicial estoppel also did not apply. The court noted that the parties were not the same in both suits and that there was no inconsistency in Green’s litigation positions.
Final outcome
The Supreme Court of Virginia reversed the circuit court's dismissal and remanded the case for further proceedings. The Court held that neither the statutory bar on multiple recoveries nor other legal doctrines prevented Green from pursuing a wrongful death claim in Virginia against different medical providers than those involved in the Kentucky settlement.
Help with wrongful death and personal injury cases
If you’ve lost a loved one due to medical negligence or are navigating claims across jurisdictions, Whitcomb, Selinsky PC handles personal injury and wrongful death cases involving healthcare providers, joint tortfeasors, and interstate litigation. Reach out to schedule a consultation and learn how our team can assist with your case.
Title: Virginia Court Allows Wrongful Death Suit After Out-of-State Personal Injury Settlement
Meta Description: Personal injury settlement in Kentucky didn’t bar wrongful death claim in Virginia. Court found different parties and no statutory election of remedies.